General Information Only: This article provides general information about reviewing and updating your estate plan in Queensland. It is not…
General Information Only: This article explains how separation, divorce and the ending of a de facto relationship affect estate planning in Queensland. It is general information, not legal advice, and laws may change. Outcomes depend on your own documents and asset structure, so speak with a qualified Queensland estate planning solicitor about your circumstances.
Quick Answer
In Queensland, separation, divorce and the end of a de facto relationship affect your estate plan very differently:
- Divorce: once the order takes effect, s 15 of the Succession Act 1981 (Qld) usually revokes gifts to, and appointments of, your former spouse — subject to exceptions and any contrary intention in the will.
- Separation (still married): changes nothing — your estranged spouse remains a beneficiary, executor and potential intestacy heir until divorce or a new will.
- End of a de facto relationship: s 15B usually revokes gifts to, and appointments of, the former partner — but proving when the relationship ended can be contested, so don’t rely on it.
Superannuation, life insurance, joint property and enduring powers of attorney sit outside your will and need separate review. The safest step after any relationship breakdown is a new will, new enduring documents and updated nominations — immediately.
How Divorce Affects an Existing Will in Queensland
Under s 15 of the Succession Act 1981 (Qld), a divorce order affects your will once it takes effect. The law then treats your former spouse as though they had died before you for the purposes of the will.
This means divorce usually:
- Revokes any gift or benefit left to the former spouse
- Cancels the former spouse’s appointment as executor, trustee or guardian
- Revokes any power of appointment granted to the former spouse
Importantly, only the parts of the will relating to the former spouse are affected — the rest of the will remains valid. There are also statutory exceptions: for example, some trustee appointments and powers of appointment involving children of both parties survive, and s 15 does not apply if the will shows a contrary intention. A divorce order usually takes effect one month and one day after it is granted; until then, the person is not yet a “former spouse” for these purposes.
Does Separation Affect My Will in Queensland?
No — separation alone has no effect on your will or on intestacy entitlements in Queensland. A spouse you have separated from, but not yet divorced, remains:
- A beneficiary under your existing will
- Entitled to a share of your estate under intestacy rules if you die without a will
- Able to make a family provision claim as an eligible person
Because you must have been separated for 12 months and one day or longer before you can even file for divorce, there is often a long window during which an out-of-date will still benefits an estranged spouse. Updating your will and reviewing your entitlements promptly after separation is the only reliable protection.
De Facto Relationships and the End of a Relationship
In Queensland, the ending of a de facto relationship affects a will in a similar way to divorce. Under s 15B of the Succession Act 1981 (Qld), the end of a de facto relationship generally revokes gifts to, and appointments of, the former de facto partner, unless a contrary intention appears in the will — the will then takes effect as if the former partner had died before you.
Unlike divorce, however, there is no formal court order proving when the relationship ended, so disputes can arise about whether and when the revocation was triggered. That evidentiary uncertainty is exactly why the safest course is still to make a new will promptly rather than rely on the automatic rule.
For completeness, the ending of a registered civil partnership carries equivalent automatic-revocation rules (s 15A). If you are in a blended family, updating your will after any relationship change is especially important.
Superannuation Is Not Covered by Your Will
Superannuation does not automatically form part of your estate. It is paid according to the fund’s rules and any binding death benefit nomination you have made. A divorce does not automatically cancel a binding nomination in favour of a former spouse.
After separation or divorce, you should:
- Review and update your binding death benefit nomination
- Check whether the nomination has lapsed (many expire after three years)
- Check your fund’s specific rules — some funds treat a divorce as automatically invalidating a former spouse’s nomination
- Consider directing benefits to your estate via your legal personal representative so your will controls distribution
Jointly Owned Property and Beneficiary Nominations
Assets owned as joint tenants pass automatically to the surviving owner by survivorship — they are not distributed under your will. If you own property as joint tenants with a former partner, that partner will inherit your share automatically unless the ownership is severed to a tenancy in common.
Severing a joint tenancy is a separate legal step — making a new will does not, by itself, stop survivorship. Life insurance held outside super, and some investment products, also pass by nomination rather than by will and must be reviewed separately.
Enduring Powers of Attorney and Health Decisions
Your enduring power of attorney (EPA) and Advance Health Directive are separate from your will and follow different rules under the Powers of Attorney Act 1998 (Qld).
- Divorce revokes an enduring document to the extent it gives power to the divorced spouse (s 53), unless the document says otherwise.
- Separation does not revoke these appointments.
- Ending a de facto relationship does not revoke them either — the Act’s triggers cover marriage, civil partnership, divorce and termination of a civil partnership, but not de facto endings.
This creates an important contrast: your ex-de facto partner may drop off your will automatically under s 15B, yet remain your attorney until you revoke or replace the document. During the 12-plus month pre-divorce window, if you lose capacity — for example, in a car accident — your estranged spouse could still control your bank accounts, property and health decisions. If you later remarry, an enduring document is also revoked to the extent it gives power to anyone other than your new spouse (s 52).
Can a Former Partner Still Claim Against My Estate?
Yes, in some circumstances. In Queensland, a family provision claim can only be made by an eligible person — a spouse, child or dependant. “Child” includes a stepchild or adopted child, “dependant” is specifically defined, and a dependent former husband, wife or civil partner can qualify as a spouse for family provision purposes. Removing someone as a beneficiary does not necessarily remove their right to claim.
Separation vs Divorce vs De Facto: Effect on Your Estate Plan
| Estate planning issue | Married but separated | After divorce order takes effect | De facto relationship ended |
|---|---|---|---|
| Gift to spouse/partner in will | Usually still valid | Usually revoked, subject to exceptions | Usually revoked under s 15B, subject to exceptions |
| Executor / trustee / guardian appointment | Usually still valid | Usually revoked, subject to exceptions | Usually revoked under s 15B, subject to exceptions |
| Intestacy entitlement | Spouse may still be entitled | Former spouse generally not entitled | Depends whether they still qualify as a de facto at death |
| Binding super nomination | Unchanged | Usually unchanged — check fund rules, update manually | Usually unchanged — check fund rules, update manually |
| Joint tenancy property | Passes to surviving joint tenant | Still passes unless severed | Still passes unless severed |
| Family provision claim | Possible | Possible in limited circumstances | Possible only if eligible as spouse/child/dependant |
| Enduring power of attorney | Usually unchanged | Revoked to extent it gives power to divorced spouse (s 53) | Not automatically revoked — replace it |
Post-Separation Estate Planning Checklist
After a separation or divorce, review each of the following:
- Your will
- Executor and trustee appointments
- Guardianship appointments for minor children
- Superannuation death benefit nominations
- Life insurance beneficiaries
- Jointly owned property — whether to sever the joint tenancy
- Enduring power of attorney
- Advance health directive
- Company, trust and business succession documents
- Any family law property settlement or binding financial agreement
Practical Example
Sarah and Tom separate but do not divorce. Sarah’s will, made during the marriage, leaves everything to Tom and names him executor and her enduring attorney. Sarah dies 14 months after separating, before applying for divorce. Because there is no divorce order, Tom inherits the entire estate and acts as executor — exactly as the old will directs. Had Sarah made a new will and a new enduring power of attorney after separating, she could have redirected her estate to her children and removed Tom’s authority over her affairs.
Frequently Asked Questions
Does divorce revoke a will in Queensland?
Not the whole will. Divorce only revokes gifts to, and appointments of, your former spouse under s 15, subject to exceptions and any contrary intention. The rest of your will remains valid, but a fresh will is usually wise.
Does separation affect my will in Queensland?
No. Nothing changes automatically. Your separated spouse remains a beneficiary and executor until you make a new will or a divorce order takes effect.
Does the end of a de facto relationship revoke my will?
Generally yes — s 15B usually revokes gifts to, and appointments of, a former de facto partner, subject to any contrary intention. But because there is no order proving when the relationship ended, it can be disputed, so make a new will.
Does divorce affect my Enduring Power of Attorney?
Yes — divorce revokes your former spouse’s appointment under an EPA or Advance Health Directive, unless the document says otherwise (s 53). But separation and the end of a de facto relationship do not. See our EPA FAQ and make a new enduring power of attorney as soon as a relationship breaks down.
Does my former spouse still get my super after divorce?
Possibly. A divorce does not automatically cancel a binding death benefit nomination, so you must update your nomination with your super fund directly and check the fund’s rules.
Conclusion
Separation, divorce and the ending of a de facto relationship affect your estate plan in different ways in Queensland. Divorce revokes the gifts and appointments relating to a former spouse under s 15, and s 15B does much the same when a de facto relationship ends — though the timing can be disputed. Separation alone changes nothing. Superannuation, joint property, life insurance and enduring powers of attorney all sit outside your will and must be reviewed independently. The clearest protection after any relationship breakdown is to make a new will, new enduring documents and updated nominations without delay.
Related reading: Keep everything current with our guide on reviewing and updating your estate plan.
Key Takeaways
- Divorce usually revokes gifts to, and appointments of, a former spouse under s 15 of the Succession Act 1981 (Qld), subject to exceptions and any contrary intention.
- Separation alone changes nothing — your estranged spouse stays a beneficiary and executor.
- The ending of a de facto relationship usually revokes gifts to, and appointments of, the former partner under s 15B — but proof of when the relationship ended can be disputed, so make a new will anyway.
- Separation does not revoke an enduring power of attorney — replace it as soon as you separate.
- Superannuation, life insurance and joint property pass outside your will and need separate updates.
- Make a new will, new enduring documents and review all nominations as soon as a relationship breaks down.