Most people assume a divorce automatically wipes their ex-partner from their will. That assumption is only partly right, and the gap between what people expect and what Queensland succession law actually does is where estates go wrong.
Under Queensland's Succession Act, a divorce order revoking a gift to a former spouse does not take effect until the divorce is finalised. Separation alone changes nothing. A couple who separated last year but has not yet divorced remains in exactly the position their current wills describe, according to the Queensland Public Trustee.
Our lawyers in Springfield help clients across Greater Springfield and Ipswich with wills, estate planning and the legal steps that follow separation or divorce.
Here is what Queensland's succession law does, and does not do, to a will after a relationship ends.
Key takeaways
- Separation alone does not change or revoke a will in Queensland.
- Divorce revokes gifts to a former spouse, but not the whole will.
- Marriage revokes an existing will entirely unless made in contemplation of it.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
Does separation or divorce automatically update your will in Queensland?
Separation has no automatic effect on a will in Queensland, according to the Queensland Public Trustee. An estranged spouse remains entitled to whatever the current will provides until either a divorce order is made or the will is changed. If a separated person dies without having updated their will, the estranged spouse may still receive gifts left to them, and any appointment of that person as executor remains valid.
Divorce is different. Under Queensland's Succession Act, a divorce order that takes effect revokes gifts to the former spouse and their appointment as executor, trustee or guardian, unless the will shows a contrary intention. The effect is as if the former spouse had died before the will-maker. The rest of the will, including gifts to children and other beneficiaries, generally remains in force.
This distinction matters enormously in the period between separation and divorce. In Queensland, the Federal Circuit and Family Court of Australia requires 12 months of separation before a divorce application can be made. That gap, plus the time the application takes to process, means a separated person may be unprotected for a year or more.
What does Queensland's Succession Act actually do to your will on divorce?
Queensland's Succession Act revokes specific provisions rather than the whole will. What is revoked on a divorce order taking effect includes gifts to the former spouse and their appointment as executor, trustee or guardian of children named in the will, according to the Queensland Public Trustee.
There are two important limits. First, the Act does not revoke an appointment as trustee for beneficiaries that include the former spouse's own children. Second, the revocation does not apply where the will itself shows a contrary intention. Where a will expressly states that gifts to a named person survive divorce, the Act will not disturb that.
The practical result is that a will made during a marriage may leave a former spouse with nothing, but it may also leave the estate partially intestate, meaning some or all of the estate passes under the intestacy rules rather than the will. That is rarely what the will-maker intended.
"Separation and divorce each affect a will in a different way under Queensland law. Most people do not realise that separation alone changes nothing, which is exactly when estates are most at risk."
Jade Kickbusch, Principal, Brookwater Legal
What does the Succession Act not cover after separation or divorce?
Several situations the Succession Act does not resolve are the ones that cause the most problems in practice.
- › Separated but not divorced: the Act's revocation provisions do not apply. Whatever the will says stands until it is changed or a divorce order is made.
- › De facto relationships: the ending of a de facto relationship has the same effect on a will as divorce, according to Queensland's Succession Act. The relationship must have genuinely ended for this to apply.
- › Superannuation: super does not pass under a will. A binding death benefit nomination directs it separately, and the Queensland Public Trustee recommends checking nominations after any major relationship change.
- › Executor appointments: if the only executor named is a former spouse and that appointment is revoked by divorce, the estate may need to apply to the court for someone else to be appointed, adding delay and cost.
- › Enduring power of attorney: an enduring power of attorney is affected by marriage and civil partnership, but its interaction with separation is different. The Office of the Public Guardian advises that a document giving power to someone who is not the current spouse may be automatically revoked on marriage or civil partnership.
How does updating a will generally work in Queensland?
Step 1: Talk to us
Get in touch and we will explain how updating a will works and what the process looks like for your situation.
Step 2: Review the existing will and related documents
We review the current will, any enduring power of attorney, any advance health directive and any superannuation nominations to identify what needs to change and what the current documents actually say.
Step 3: Prepare the new will
We prepare a new will with a revocation clause, which cancels the existing will in full. Under Queensland's Succession Act, a valid will must be in writing, signed and dated in the presence of two witnesses aged 18 or over, according to the Queensland Public Trustee. We prepare the document so it meets those requirements and reflects the will-maker's current intentions.
Step 4: Advise on related documents
We advise on whether the enduring power of attorney, advance health directive and superannuation nominations also need to be updated, and prepare any documents needed to do so.
| Get in touch Need help with updating your will after separation? We're an experienced team who keep you well informed at every stage of the process. Get in touch to discuss your needs. |
What are the common mistakes people make about wills after separation in Queensland?
The most common mistake is treating separation and divorce as the same thing for estate planning purposes. They are not. A separated person who dies before a divorce order is made leaves their estate governed by a will that still names their former partner as a beneficiary and often as executor. The Queensland Public Trustee notes that fewer than half of Queenslanders aged 40 to 60 have a current will, and among those going through separation the figure is likely lower still.
A second mistake is assuming the whole will is cancelled by divorce. It is not. Specific provisions are revoked, but the remainder of the will stands. Where that remainder is unclear or creates a partial intestacy, the estate may be distributed in a way the will-maker never intended, according to the Queensland Public Trustee's guidance on intestacy.
What happens to a will when someone remarries in Queensland?
Marriage or a civil partnership revokes an existing will entirely under Queensland's Succession Act, with one exception. A will made in contemplation of the marriage, meaning the will itself names the intended spouse and states it is made in anticipation of the marriage, is not revoked. This rule means a person who remarries after divorce and has not made a new will may die without a valid will at all, leaving the estate to pass under the intestacy rules regardless of what the revoked will said.
The Queensland Public Trustee's guidance confirms that life events including marriage, divorce and the start or end of a de facto relationship are all triggers for reviewing and updating a will. A will that was appropriate at one stage of life may be seriously inadequate at another.
Frequently Asked Questions
Does separation automatically change a will in Queensland?
No. Separation has no automatic effect on a will in Queensland, according to the Queensland Public Trustee. A separated spouse remains entitled to whatever the current will provides until the will is changed or a divorce order takes effect.
Does divorce cancel a whole will in Queensland?
No. Under Queensland's Succession Act, divorce revokes gifts to the former spouse and their appointment as executor, trustee or guardian, but the rest of the will generally remains valid. The estate may become partially intestate if those provisions were central to the will.
Does the end of a de facto relationship affect a will in Queensland?
Yes. Under Queensland's Succession Act, the end of a de facto relationship has the same effect on a will as divorce, revoking gifts and appointments in favour of the former partner. The Queensland Public Trustee recommends reviewing a will whenever a relationship ends.
Does remarriage revoke a will in Queensland?
Yes. Under Queensland's Succession Act, marriage revokes an existing will entirely, unless the will was made in contemplation of that marriage. A person who remarries without making a new will generally dies intestate, regardless of what the revoked will said.
What happens to superannuation when a will is updated after separation in Queensland?
Superannuation does not pass under a will. A binding death benefit nomination directs it separately, according to the Queensland Public Trustee. Reviewing and updating nominations is an important step alongside updating a will after any relationship change.
Do you need a solicitor to update a will after separation in Springfield or Ipswich QLD?
A solicitor can ensure the new will is properly prepared and that related documents, including an enduring power of attorney and superannuation nominations, are reviewed at the same time. Our wills and estates solicitors work with clients across Greater Springfield and Ipswich on estate planning after separation and divorce.
When should a will be updated after a separation in Queensland?
As soon as possible after separation, not after the divorce is finalised. The Queensland Public Trustee lists separation as a trigger for reviewing a will, because the law does not protect a separated person's estate in the way most people assume until a divorce order takes effect.
Your Next Steps
For families across Greater Springfield and Ipswich, the period between separation and divorce is the one where estate planning matters most and is most often left unattended. A separated person's current will may deliver an outcome that nobody intended, and the law will generally honour it.
Every wills and estates matter is different, and that's exactly why it's worth a conversation. Make an appointment with the Brookwater Legal team or call (07) 3437 8555.
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External Resources
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
