Updated 30 October 2026
CM Law's Ultimate 50 List - Separated Couples FAQ #36: How to update wills and estate plans during separation?
What should you update in your estate plan after separation?
After separation, review your will, executor appointments, powers of attorney, enduring guardianship, superannuation nominations, insurance and property ownership. NSW law treats each differently, so changing one document does not update the others. Arrange a coordinated legal review promptly, particularly if your former partner still controls decisions or benefits.
- Gather your existing documents, fund statements, insurance policies, property titles and family law orders or agreements.
- Identify who should inherit, who should administer your estate and who should make decisions if you lose capacity.
- Ask your lawyer which changes require immediate action and which must coordinate with your property settlement.
Do not wait for the divorce or assume an unfinished settlement prevents you reviewing your will. CM Lawyers’ wills and estates service can assess the documents together.
Does separation or divorce automatically change a NSW will?
Separation does not revoke a NSW will, so a separated spouse may remain your beneficiary and executor. When divorce takes effect, it generally revokes specified gifts and appointments involving the former spouse, subject to exceptions and contrary intention. Divorce does not automatically cancel the entire will.
Section 13 of the Succession Act 2006 (NSW) preserves certain arrangements involving children and provisions concerning debts or liabilities. A trust benefiting children of the former spouse requires particular attention. Do not assume every reference to your former partner disappears.
Ending a de facto relationship does not automatically produce the divorce rules. Remarriage can generally revoke an earlier will, subject to statutory exceptions, including wills made in contemplation of that marriage. Review your documents at each relationship change.
How should you change beneficiaries and executors?
Ask your solicitor to prepare a replacement will or properly executed codicil that records your current intentions. Review specific gifts, the remainder of your estate, substitute beneficiaries and executor appointments. Choose people who can perform the responsibilities, manage conflicts and administer the estate if your first choice cannot act.
An executor collects estate assets, deals with liabilities and administers distributions. A trustee may manage an inheritance for children over many years. These roles require availability, sound judgment and willingness to act; appointing two people can also create disagreement or delay.
Discuss children from different relationships, business interests, overseas assets and ongoing obligations to your former partner. Avoid handwritten alterations to the existing document. Your solicitor should also assess testamentary capacity and whether anyone is placing you under pressure.
Should you replace your power of attorney and enduring guardian?
Separation and divorce do not automatically revoke a NSW power of attorney or enduring guardian appointment. Your former partner may retain authority unless the appointment is properly revoked or otherwise ends. Review financial decision-making and health or lifestyle decision-making separately, because a new will does not replace either document.
A power of attorney concerns financial and legal matters; an enduring guardian can make authorised health and lifestyle decisions when you cannot. Neither role authorises the person to make your will.
Revocation requires appropriate capacity and formal steps. Notify the attorney and affected institutions in writing, and address registration if the power was registered. Enduring guardian revocation requires the prescribed document, eligible witnessing and written notice. If capacity is already impaired, obtain advice about tribunal or court intervention.
How do you update superannuation and life insurance?
Superannuation and insurance held through super do not automatically pass under your will. Review each fund’s death benefit nomination and its rules about eligible recipients, binding directions, expiry and relationship changes. Separately check any life insurance outside super, including who owns the policy and who is nominated to receive payment.
Permitted super recipients generally include eligible dependants or your legal personal representative. A nomination to your estate can bring the benefit under your will, but requires advice about tax, beneficiaries and possible claims.
A separated but legally married spouse can remain eligible. Binding nominations must satisfy the fund’s requirements; some lapse while others do not. Ask the fund to confirm the accepted nomination and its review date. Moneysmart explains the main nomination options.
Can your will redirect your share of the family home?
Your will generally cannot redirect property held as joint tenants because the surviving joint tenant receives it by survivorship. A share held as tenants in common can pass through your estate. Obtain a title search and legal advice about the ownership structure before relying on gifts in your will.
NSW Trustee and Guardian explains this distinction. Separation alone does not sever a joint tenancy. Discuss whether severance is appropriate alongside your mortgage, existing orders, agreements and any pending property settlement.
Changing ownership is a separate legal process, with consequences for both parties. Do not transfer property or sever a joint tenancy simply to defeat another person’s rights. Your lawyer should check restrictions and outstanding obligations before any dealing is lodged.
How can you provide for children after separation?
Your will can establish who manages a child’s inheritance, how funds may be used and when the child receives control. You can also record preferences about their care. However, nominating a testamentary guardian does not override a surviving parent’s parental responsibility or determine a parenting dispute conclusively.
A trustee manages inherited money; the person caring for the child performs a different role. Discuss education, health expenses, suitable trustees and replacement arrangements. A testamentary trust needs careful drafting and administration rather than a standard promise that assets will be protected.
Legal Aid NSW explains guardianship after a parent’s death. Existing parenting orders, safety concerns and the child’s best interests remain relevant. Tell your solicitor about these matters instead of assuming the will can exclude the other parent.
Removing someone from your will does not necessarily prevent a family provision claim. A separated spouse and a former husband or wife are eligible categories under NSW law, although additional requirements apply to former spouses. Eligibility alone does not establish entitlement: the court considers whether provision is legally justified.
A former de facto partner is not automatically eligible merely because the relationship once existed, but may qualify through another statutory category. Children can also be eligible applicants. Claims generally must be filed within 12 months of death; late applications require specific advice.
Ask your lawyer to document relevant circumstances and assess family provision risks, outstanding debts and settlement obligations. A property settlement should not be treated as an automatic waiver of all estate claims.
What does Dayman v Dayman show about an unchanged will?
Dayman v Dayman [2025] NSWSC 900 shows that separation and a property settlement do not themselves rewrite a will. The deceased’s will remained operative despite decades of separation. The case also demonstrates that an eligible adult child is not automatically entitled to additional provision from the estate.
In Dayman v Dayman, Brian’s 1992 will appointed his wife, Glenys, as executor and sole beneficiary, with substitute gifts to their children. They separated in the late 1990s and obtained property settlement orders in 2004, but never divorced. Brian later lived in a longstanding de facto relationship.
After his death in May 2024, their adult daughter sought family provision. The NSW Supreme Court dismissed her claim, considering the small, insolvent estate, unpaid obligations to Glenys and the daughter’s circumstances. The decision does not establish that a separated spouse always takes priority; the outcome depended on the evidence.
How should you sign, store and review the updated documents?
Have your lawyer check both the wording and execution of your updated will. For ordinary physical signing, you sign or acknowledge your signature before two witnesses present together, and each signs in your presence. Use independent adult witnesses who can see and attest the signing, and preserve the original.
A beneficiary acting as witness can jeopardise their gift, subject to exceptions, rather than automatically invalidating the whole will. Online preparation does not remove witnessing requirements.
Registration is not required for validity. Solicitor safekeeping or voluntary Supreme Court deposit may be suitable; tell your executor where the original is held. Review again after divorce, remarriage, settlement or significant asset changes. Contact CM Lawyers to have the complete plan checked against your circumstances.
General information for people separating in NSW, not individual legal advice. Have your estate documents and proposed changes checked by a lawyer against your circumstances.
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