Updated October 2026
Probate Problem 34 How Does Marriage Affect Probate
Marriage is a life-changing event that affects your personal life and can significantly change what happens to your estate. In New South Wales, getting married generally revokes an existing will, subject to important exceptions. This can alter who inherits, who administers the estate and whether the people named in an earlier will receive anything.
Understanding how marriage affects probate is particularly important for people remarrying or supporting children from an earlier relationship. Review your estate plan before the wedding and check it again afterwards. A signed will kept safely in a drawer may no longer operate as its maker intended.
1 How marriage can revoke an earlier will
Section 12 of the Succession Act 2006 governs the effect of marriage on a will. The general rule is revocation by marriage, even if the person did not intend to cancel the document. The legal term is ‘revoked’, although people sometimes describe the will as having been annulled.
There are exceptions. Gifts to the person who remains the will-maker’s spouse at death, and certain appointments of that person, including as executor or trustee, are protected from revocation by marriage. Wills made in contemplation of marriage can also survive. Depending on the document, some provisions may remain effective while others fail, potentially leaving a partial intestacy.
The State Library of NSW’s guidance on changing or revoking a will recommends legal advice when making a will in anticipation of marriage. Have the actual document reviewed rather than assuming that marriage cancels everything or leaves everything unchanged.
2 What contemplation of marriage means
A will made in contemplation of a particular marriage is not revoked by that marriage. Under section 12(3), the intention does not have to be expressly written into the will, but it must be established from the evidence. A separate exception applies where the will expressly states that it is made in contemplation of marriage generally.
Clear drafting can avoid a later dispute about what the will-maker had in mind. Tell your solicitor about the intended marriage, identify your partner and explain your wishes for children and other beneficiaries. Being in a relationship when you sign a will does not automatically prove that the document was made in contemplation of a subsequent wedding.
3 Christine on relying on an old will
“We had a matter where a beneficiary was trying to rely on an earlier will, but a later marriage had revoked it. That is why I ask clients to look beyond the document itself and check what has happened since it was signed.
“If there has been a marriage, the will needs a proper legal review. Was it made in contemplation of that marriage? Do any exceptions apply? Are the gifts and executor appointments still effective? These questions can change the outcome completely. I would much rather have that conversation while someone can still update their wishes than have the family trying to work it out after their death.”
4 What happens when marriage leaves no effective will
If marriage revokes the relevant will and no effective replacement exists, the estate may need to be administered under the intestacy rules. Probate proves a valid will and the executor’s authority. Where there is no valid will, an eligible person generally applies for letters of administration instead. A surviving spouse does not simply obtain unrestricted access to every asset by producing a marriage certificate.
For an intestate estate with one surviving spouse, that spouse generally receives the whole estate if there are no descendants, or if all the deceased’s descendants are also descendants of that spouse. Where the deceased has descendants from another relationship, the spouse generally receives personal effects, an indexed statutory legacy and half the remaining estate. The other half goes to the deceased’s descendants under the statutory rules.
This is not a fixed ‘first $500,000’ entitlement. The legacy is calculated according to the date of death and statutory indexation. If the estate cannot cover that legacy, the spouse can receive the whole estate, leaving nothing for the children under intestacy. Legal Aid NSW explains that all the deceased’s children share the relevant remaining half, including children of the surviving spouse. Special rules address descendants of children who have died and situations involving more than one qualifying spouse.
5 A real case where remarriage revoked the will
In Re Estate Grant, deceased (2018), David Grant made a will in January 2014 leaving his estate equally to his two sons and a stepson. He married his second wife in September 2015 and died later that year. His brother and the beneficiaries argued that the earlier will remained effective because it had been made in contemplation of that marriage.
The NSW Supreme Court examined the evidence and rejected that argument. It found that, when making the will, Mr Grant had focused on arrangements concerning his first family rather than the future marriage and its associated obligations. The marriage therefore revoked the will, and intestacy rules applied.
The stepson, who had no entitlement under those intestacy rules, was granted family provision relief in the same decision, in the form of a $750,000 legacy. The decision illustrates why beneficiaries cannot assume an earlier signed will survives a later marriage. The absence of an express contemplation clause was not, by itself, decisive; the Court examined the surrounding evidence.
6 Consider the home and assets outside the estate
Marriage does not automatically give the surviving spouse the deceased’s home. Under intestacy, a spouse may have a statutory right to elect to acquire estate property, subject to deadlines and financial requirements. Their inheritance can be credited towards the price, but they may need to fund a shortfall. The Supreme Court’s administration guidance explains how to apply for letters of administration.
Ownership also matters. Property held as joint tenants generally passes to the surviving joint tenant, while a deceased tenant in common’s share ordinarily forms part of their estate. Superannuation death benefits do not automatically pass under a will. Review nominations and fund rules alongside your estate plan. Legal Aid NSW’s assets and debts guidance explains these distinctions.
7 Plan carefully for a blended family
A current will can address support for a spouse while preserving intended benefits for children. Discuss practical questions: who should live in the home, who pays its expenses and when children receive their inheritance? Trusts or a carefully drafted right of residence may be appropriate, but their costs, funding and tax consequences need individual assessment.
A will cannot guarantee immunity from a family provision claim. Eligible spouses, children and certain other people may seek further provision under NSW law; eligibility and entitlement are separate questions. Applications generally must be filed within 12 months of death, subject to exceptions. Obtain advice early if a claim may arise.
The ABS recorded 118,804 marriages in Australia in 2025, including 39,818 registered in NSW. These figures show the scale of marriage as an estate-planning milestone. They do not measure how many wills were revoked or how often probate disputes occurred.
8 Review your estate plan before and after marriage
Bring your existing will and any codicils to your solicitor, together with details of previous marriages, children, property ownership and superannuation. Confirm whether the will is intended to survive the wedding, whether the executors remain suitable and whether the proposed gifts can actually be funded. Update related planning documents where needed and tell your executor where the signed originals are stored.
After a death, preserve every available will and codicil and obtain the marriage details before anyone promises an inheritance. The solicitor may need the original drafting file and evidence about the intended wedding. Identifying these issues before applying for a grant can prevent the estate being administered on an incorrect assumption.
Review again after separation or divorce. Separation does not itself revoke a will, while divorce generally affects gifts and appointments involving a former spouse, subject to exceptions. CM Lawyers can review how your current relationship and family circumstances affect your will and help put clear, workable arrangements in place.
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