Why divorced people need a new will

Divorce doesn’t erase your will

Many people assume that divorce automatically cancels their will. It doesn’t — not entirely.

🇦🇺 In Australia: In most states, divorce revokes any gift to your ex-spouse and removes them as executor. But the rest of your will remains valid. If your ex was your main beneficiary, you now have a will that might not make sense anymore.

What actually happens

After divorce, your existing will typically:

✅ Remains valid overall
❌ Any gifts to your ex-spouse are revoked (treated as if they died before you)
❌ Their appointment as executor is revoked
⚠️ Backup beneficiaries (if named) receive those gifts instead
⚠️ If no backup was named, those gifts may fall into the residuary estate

The backup beneficiary surprise

Here’s a common scenario:

Your old will says: “I leave everything to my spouse, or if they predecease me, to my children.”

After divorce, this becomes: “I leave everything to my children.”

That might be fine — or it might not. What if:

Your children are minors with no trust provisions?
You wanted to provide for a new partner?
You’ve promised things to other family members?
Your financial situation has completely changed?

Your ex might still benefit

Even though your ex is removed as a direct beneficiary, they might still benefit indirectly:

Through your children — If minor children inherit, and your ex has custody, they effectively control the money
Through shared assets — Joint accounts or investments might not be covered by your will
Through super — If you never updated your super nomination, your ex might still be listed

Super is separate from your will

Your superannuation has its own beneficiary nomination, and divorce doesn’t automatically change it.

Check your super fund immediately. If your ex is still listed:

Update your binding death benefit nomination
Consider nominating your estate (then your will controls it)
Or nominate specific people directly

What about your new partner?

If you’ve moved on to a new relationship:

Your old will probably doesn’t mention them at all
They’ll have no automatic claim to your estate
They may be able to make a family provision claim, but that’s expensive and uncertain
The safest approach is a new will that clearly provides for them

⚠️ Warning: If you're living with a new partner without updating your will, you're leaving their future security to chance and the courts.

Children need clear protection

Divorce often means your children live primarily with one parent. If you die:

Guardianship — If both parents were alive, the other parent usually gets custody regardless of your will. But you can express wishes.
Financial protection — A testamentary trust can ensure your children benefit from their inheritance, even if your ex controls their daily life.
Trustees — Consider appointing someone other than your ex to manage your children’s inheritance.

Separation vs divorce

If you’re separated but not yet divorced, your situation is more complex:

Your spouse is likely still entitled to inherit under intestacy rules
Gifts in your will to your spouse are still valid
Making a new will during separation is strongly recommended
But be aware it could be challenged if you die before divorce is finalised

What to do after divorce

Find your current will — Read it carefully
Check your super nominations — Update immediately if needed
List what’s changed — New partner? New assets? New wishes?
Make a new will — One that reflects your life now
Update Powers of Attorney — Remove your ex if they’re named
Use our Preparation Checklist to organise everything

💡 Fresh start: A divorce is a natural time to start fresh with your estate planning. Don't carry old documents into your new chapter.