Updating Your Will After Separation: A Sydney, NSW Guide

Separation doesn’t change your will in NSW. Learn what updating your will, power of attorney, and superannuation means during divorce, and why timing matters.

If you’ve just separated, your will probably leaves everything to the person you’re about to spend the next twelve months negotiating against. In most matters, we see the same will names the ex-partner as executor, the person who’d wind up your estate, administer your super, and sign off on every decision if something happened to you tomorrow.

In NSW, separation doesn’t change any of that. Not the gifts, not the executor appointment, not the power of attorney. Your existing will stays valid and operative until you update it, or until a divorce order actually takes effect under the Family Law Act 1975. That gap between going through separation and divorce, which in practice runs a minimum of twelve months and often longer, is where most estate planning mistakes happen.

Separation in Sydney often takes eighteen months to two years to fully resolve. Property settlement, parenting orders, and the divorce itself rarely move in sync. If you die during that window without updating your documents, the person you’ve just left inherits. Usually everything.

Key takeaways

Separation alone does not invalidate or change your will in NSW.
Under section 13 of the Succession Act 2006 (NSW), divorce revokes gifts and executor appointments to a former spouse, but only once the divorce order takes effect.
Your will is one of six documents worth reviewing after separation: will, power of attorney, enduring guardianship, superannuation binding nomination, life insurance, and any trust arrangements.
A former spouse can still contest your estate after divorce through a family provision claim under section 57 of the Succession Act.
For de facto separations, the will is not revoked by ending the relationship; only a new will fixes it.

Does separation invalidate a will in NSW?

No. Separation has no legal effect on your will in NSW.

This is the single point most people get wrong. Separation, whether from a marriage or a de facto relationship, doesn’t revoke any gift, doesn’t remove your spouse as executor, and doesn’t override any power of appointment. The will you signed five years ago with your ex-partner as the primary beneficiary remains the document a court would apply if you died tomorrow.

The Succession Act 2006 (NSW), which governs wills in this state, treats divorce and separation as two very different events. Section 13 gives divorce some automatic effect on a will. Separation gets nothing. Not even if you’ve been separated for a decade, finalised a property settlement, and started a new relationship.

We’ve seen matters where a client separated, sorted out the house and the super through property settlement, and then died years later without ever making a new will. The ex-spouse, technically still married, inherited the residue estate and acted as executor. It wasn’t what the deceased wanted. The court’s role is to apply the document in front of it, and that’s the document they signed.

What happens to my will when I’m divorced in NSW?

Once a divorce order takes effect under the Family Law Act 1975, section 13 of the Succession Act 2006 (NSW) kicks in automatically. The divorce doesn’t revoke your whole will; that’s a common misconception. What it revokes is narrower but significant:

Any gift or beneficial disposition to your former spouse
The appointment of your former spouse as executor, trustee or guardian
Any power of appointment exercisable by or in favour of your former spouse

The legal effect is that the will operates as if your former spouse had died before you. So the substitute executor takes over, and the gifts that would have gone to your ex either pass to a named alternative beneficiary or fall into the residue.

Two exceptions are worth knowing. If your former spouse was appointed as trustee of property left on trust for beneficiaries that include their children with you, that trustee appointment survives. So does a power of appointment exercisable exclusively in favour of children you share. The legislation preserves those arrangements because they exist to benefit the children rather than the former spouse personally.

The revocation of a will by divorce, NSW rules don’t apply until the divorce order takes effect. Filing the application isn’t enough. Being separated for three years isn’t enough. The clock starts when the order becomes final, roughly a month after the divorce hearing.

What if I die before the divorce comes through?

This is the window that catches people out. Death during divorce proceedings in NSW is more common than firm conversations around kitchen tables suggest, and the law offers very little protection.

Here’s how it plays out in practice. Separation date: January. Property settlement negotiations drag on through the year. The divorce application is filed in November, once the twelve-month separation period has been served out. The divorce order takes effect in December, roughly a month after the hearing.

For the eleven months between separation and divorce, the existing will governs. The ex-spouse is the executor. The ex-spouse is the primary beneficiary. And any property settlement that was being negotiated has no legal force until it’s documented in consent orders or a binding financial agreement.

If you die during property settlement without updating your will, the estate is governed by the document you signed while you were married, not by the settlement you were still negotiating. Your ex-partner takes under the will, and any claim your adult children or new partner might have requires them to bring a family provision application against your estate.

Updating your will the week you separate closes this gap. It’s often the single most useful thing a separating client can do, and it’s the step most often delayed until it’s too late.

Can my ex contest my estate after the divorce?

Yes, and this is where a lot of clients assume divorce does more work than it actually does.

Under section 57(1)(d) of the Succession Act 2006 (NSW), a former spouse is an eligible person to bring a family provision claim. They can apply to the Supreme Court of NSW for further provision from your estate if they can show “factors warranting” the application, and then satisfy the court that adequate provision wasn’t made for their proper maintenance, education or advancement.

A family provision claim by a former spouse in NSW isn’t automatic. The court looks closely at the property settlement, whether it was fair, whether ongoing maintenance was in place, whether the former spouse was financially dependent, and whether there was a long marriage with significant contributions. A short marriage that ended with a clean property settlement and no ongoing financial ties is a weak claim. A long marriage that ended with an uneven settlement, ongoing spousal maintenance, and no provision in the will is a strong one.

So, can my ex-wife claim on my estate if we are divorced? She might. The stronger the property settlement and the further in time from the divorce, the weaker the claim tends to be. But divorce doesn’t shut the door entirely.

Your will isn’t the only document that matters

Most people separate thinking about the will and forget the rest. The will is actually the last document to operate; it only takes effect when you die. Your power of attorney, enduring guardianship, and superannuation nominations can all take effect while you’re still alive, and all of them need attention when you separate.

Power of attorney

Removing an ex-partner from a power of attorney in NSW is a direct revocation process. You sign a revocation document, notify the attorney, and execute a new power of attorney under the Powers of Attorney Act 2003 (NSW). Until you do, your ex retains legal authority to manage your finances if you lose capacity. That’s not a theoretical risk, if you have a stroke or a serious accident during the property settlement, your ex-partner is signing for you.

Enduring guardianship

Updating enduring guardianship after separation is governed by the Guardianship Act 1987 (NSW). This is the document that authorises someone to make medical and lifestyle decisions for you if you lose capacity. If your ex is still your enduring guardian, they can consent to treatment, discharge you from the hospital, and decide where you live.

Superannuation

Your binding death benefit nomination sits outside your will. Super isn’t an estate asset; it’s held in trust by your fund, and it only ends up in your estate if your nomination directs it to your legal personal representative. A binding death benefit nomination after separation in NSW doesn’t automatically lapse when you separate or divorce. Depending on the fund, it may remain valid for up to three years, directing your super straight to your ex-spouse.

Updating your superannuation death benefit nomination after divorce means contacting each fund separately, obtaining the correct form, and completing a new nomination with witnesses. If you have multiple super accounts, each one needs a separate nomination.

Life insurance

Changing life insurance beneficiaries after separation sits in a similar territory to superannuation. The policy pays directly to the nominated beneficiary, outside your will. Policies held through super follow the binding nomination; policies held personally follow the nomination made with the insurer.

Protecting children’s inheritance in blended families

For clients in blended families, the estate planning conversation after separation runs deeper than the “update the will” shorthand suggests. If you have children from a previous relationship, and you’re separating from a second partner, the risk is that your estate passes to your new ex-partner, who then, entirely legally, leaves it to their own children on their death. Your children inherit nothing.

Testamentary trusts for blended families after divorce are the most common answer. A testamentary trust is a trust created by your will, giving a trustee control over assets for the benefit of named beneficiaries. You can leave your children the benefit of assets through a trust while restricting who can become a beneficiary, controlling how and when distributions happen, and appointing a trustee who isn’t your former partner.

Protecting children’s inheritance from an ex-spouse also works alongside the will, binding financial agreements during the relationship, separate ownership structures, and careful nomination of beneficiaries across super and insurance. The will alone isn’t enough.

How long after separation should I update my will?

Immediately is the honest answer. Not after the property settlement, not after the divorce, the day you separate.

Some clients hesitate because they think updating the will might prejudice the property settlement, or because the separation isn’t yet final in their own heads. Neither is a reason to wait. Updating your will changes who inherits if you die. It has no effect on the property settlement negotiations or on the legal status of your marriage. The two sit on different tracks.

We generally recommend clients speak to their family lawyer about the separation and to an estate planning lawyer about the will in the same fortnight. The cost to update a will after separation in NSW is modest, typically in the low four figures for a straightforward will and power of attorney, more if testamentary trusts or complex blended family structures are involved. Set against the scale of an estate that might pass to the wrong person, it’s the cheapest insurance in family law.

What to do next

Separation is the right moment to review every document that controls what happens to your assets, your finances, and your care if you die or lose capacity. How to remove an ex-spouse from a will is straightforward once you start drafting a new will, which revokes the old one, and the revocation flows through to the executor appointment, the beneficiaries, and any guardianship provisions for children.

For Sydney clients, our estate planning lawyers work alongside our family lawyers through the separation and property settlement process. The initial advice is usually a thirty to sixty-minute conversation with a clear written scope and a fixed fee for the documents that follow.

To arrange a confidential consultation, contact our Sydney office.

This article provides general information about NSW law, not legal advice. Every matter is fact-specific. For advice on your circumstances, speak to an estate planning lawyer.