Separated But Not Divorced in Victoria: What Happens to Your Will, Superannuation and Powers of Attorney?

Your Will after separation

A Will is revoked only in the ways the Wills Act 1997 (Vic) allows, such as by a later Will, by deliberate destruction, by marriage in most cases, and in part by divorce. Separation is not one of them. A Will that leaves everything to your spouse and appoints them as executor still has that effect the day after you separate, and it will continue to have that effect until you change it.

This means that if you die while separated, your existing Will may:

• leave your estate, or a large part of it, to your separated partner;
• appoint your separated partner as executor, giving them control of the administration;
• appoint them as testamentary guardian of your children; and
• make them trustee of any trust for your children.

A new Will made soon after separation can change all of these. You can generally make a new Will at any time while you have testamentary capacity, even before any property settlement or divorce. Our guide on how to make a Will in Victoria covers the formal requirements. A new Will cannot remove your former partner's possible claims against the estate. It can, however, set out your wishes clearly, appoint an independent executor and leave a record that will matter if a claim is made.

Choosing an executor and guardian

An executor who is in dispute with your estate's beneficiaries, or who may be bringing a claim against it, has a conflict. Consider appointing a trusted relative, friend or professional instead. If you have young children, your former partner may continue as their parent and carer after your death. A testamentary guardian does not displace a surviving parent's parental responsibility or determine parenting arrangements independently of the Family Law Act and any parenting orders. The appointment can still be important, and a trust in your Will can control how assets left for the children are managed and by whom. Our guide to estate planning for blended families explains options for protecting children from an earlier relationship.

What divorce changes

Under section 14 of the Wills Act 1997 (Vic), divorce or annulment of your marriage revokes:

• a gift in your Will to your former spouse;
• an appointment of your former spouse as executor, trustee, advisory trustee or guardian; and
• a power of appointment exercisable by, or in favour of, your former spouse, except one exercisable by them only for children of both you and that spouse.

The Will otherwise operates as if your former spouse had died before you. Two limits are important. First, section 14 does not apply if the Will shows a contrary intention. Second, an appointment of a former spouse as trustee of property left to beneficiaries who include the former spouse's children is not revoked.

Section 14 is triggered by the divorce taking effect, not by separation, a property settlement or the filing of a divorce application. In Australia a divorce application can generally be made only after at least 12 months of separation, so a Will may continue to benefit a separated spouse for a long time. Divorce also does not make the rest of the Will suitable. A gift-over to a substitute beneficiary may operate on the deemed prior death of your former spouse; otherwise property may fall into residue or partial intestacy. Check the actual clauses, the contrary-intention exception and replacement executors. A new Will is still the better course.

If you later marry again, section 13 of the Act generally revokes your earlier Will, unless it was made in contemplation of that marriage or another exception applies. Planning for a new relationship is often part of the same review.

De facto and registered relationships

Section 14 applies to the divorce or annulment of a marriage. The Wills Act contains no equivalent rule that automatically revokes gifts or appointments when a de facto relationship or a registered domestic relationship ends. If you made a Will in favour of a de facto partner and the relationship has ended, the Will continues to benefit them until you make a new one.

A de facto relationship can end without any formal step, and couples sometimes disagree about when it ended. That date matters for family law time limits and for whether your former partner still counts as your partner if you die. If your relationship was registered under the Relationships Act 2008 (Vic), separation does not itself revoke registration. While registration subsists, a registered domestic partner remains a domestic partner for intestacy and section 90(a) eligibility, even if you no longer live together.

Under sections 11–15 of the Relationships Act, death or the marriage of either party automatically revokes registration. Otherwise either or both partners can apply to the Registrar; a unilateral applicant must serve the other partner, subject to the statutory service provisions. The Registrar must wait 90 days after the application before revoking registration, unless the application is withdrawn or a court or tribunal otherwise directs. A court may order revocation under section 16, and VCAT may revoke registration on review under section 28. Making an application is not the same as completed revocation. Ending registration does not itself revoke gifts in your Will: section 14 of the Wills Act concerns divorce of a marriage, not termination of domestic-partnership registration.

If you die without a Will

If you die without a valid Will, your estate is distributed under the intestacy rules in the Administration and Probate Act 1958 (Vic). For those rules, your spouse is the person you were married to at the time of your death. Separation does not change that, so a separated but not divorced spouse can still take as your partner on intestacy.

Under section 3, an unregistered domestic partner must live with the deceased as a couple on a genuine domestic basis at death and either have done so continuously for at least two years immediately before death, or be the parent of a child of the deceased who is under 18. A former cohabiting partner does not qualify merely because the earlier relationship met that duration; a still-registered partner is different.

With one surviving partner, that partner takes the whole estate if there are no children or all the deceased's children are also that partner's children (sections 70J–70K). If there is a child who is not the partner's child, section 70L gives the partner personal chattels, the statutory legacy with interest and half any balance; the children share the other half. The legacy may exhaust a smaller estate, and its current indexed amount must be checked rather than assumed.

A separated spouse or still-registered partner and a new qualifying domestic partner can coexist. Sections 70Z–70ZE provide for multiple partners, with their entitlement shared through a distribution agreement, court distribution order or the statutory equal-share fallback. Children from an earlier relationship can also affect the division. Our guide to dying without a Will in Victoria explains the detailed distribution rules. This summary is not a substitute for checking the particular family structure.

Family provision claims by a separated partner

Even a new Will that leaves nothing to a separated partner may not be the end of the matter. Under section 90(a) of the Administration and Probate Act 1958 (Vic), a person who was your spouse or domestic partner at the time of your death is an eligible person who may apply for family provision. A legally married but separated spouse is still your spouse.

A former spouse or former domestic partner can also be eligible, but only in limited circumstances. Under section 90(e), they must have been able to take proceedings under the Family Law Act 1975 (Cth) at your death, must not have taken them or finalised them, and must now be prevented from doing so because of your death. These are cumulative conditions, not a general right for every former partner. Where existing family law proceedings can continue after death, the effect on section 90(e)(iii) needs specific advice: it should not be assumed that death prevents the claim. Our companion article on death before property settlement addresses that unresolved interaction.

Section 90(k) separately covers a person who was a member of the deceased's household at death, or had been a member of the same household and would have been likely in the near future, had the deceased not died, to become a member again. Earlier cohabitation alone is not enough for the latter limb. For this category, section 91(2)(b), which applies to categories (h)–(k), also requires whole or partial dependency on the deceased for proper maintenance and support. In assessing that test, section 91(3) requires the Court to disregard means-tested government benefits received or available to the claimant. Sections 91(4)(d) and 91(5)(b) address dependency at death: the Court must consider its degree, and provision must be proportionate to it, as well as no greater than necessary for proper maintenance and support under section 91(5)(a). The special dependency requirement does not apply to the spouse/former-partner categories.

Eligibility is only the threshold. The Court must also find that you had a moral duty to provide for the person and that your estate does not make adequate provision for their proper maintenance and support. The circumstances of the separation, any property settlement already received and the needs of other beneficiaries can all be relevant. An application must generally be made within six months after the grant of probate or letters of administration, although section 99 permits an extension only before final distribution of the estate. See our guide to family provision claims in Victoria for the full framework.

Finalising your property settlement by consent orders or a binding financial agreement and keeping a clear written record of your reasons in your estate planning can reduce the risk and scope of a claim. Neither is a general Victorian statutory release of Part IV rights. A completed settlement may affect section 90(e) eligibility and the merits or amount of a claim; a still-married or still-registered partner can remain eligible under section 90(a). Do not treat a release clause, financial agreement or consent order as an automatic bar to every estate claim.

Superannuation after separation

Superannuation is often one of the largest assets a separated person has, and it is usually not controlled by the Will. The fund trustee holds it and pays death benefits according to the fund's rules, superannuation law and any valid nomination. It passes under your Will only if the trustee pays it to your legal personal representative.

A benefit paid directly to an eligible beneficiary ordinarily remains outside the Victorian deceased estate. A benefit paid to the legal personal representative enters the estate and is administered under the Will or intestacy rules, subject to debts and estate claims. Victoria has no NSW-style notional estate regime that generally brings direct super payments or survivorship property into a Part IV claim. That does not rule out a separate ownership, trust or fund dispute, or the different treatment of super in family law proceedings.

Under section 10 of the Superannuation Industry (Supervision) Act 1993 (Cth), a spouse includes a person you are legally married to, a person in a qualifying registered relationship with you, and a person you live with on a genuine domestic basis as a couple. A legally married but separated spouse still meets that definition. A former de facto partner you no longer live with may not, unless they are a dependant for another reason.

This means:

• a binding death benefit nomination in favour of a separated spouse can remain effective, if it is otherwise valid and in force under the fund's rules;
• a non-binding nomination will be considered by the trustee, who may still pay a separated spouse; and
• if there is no nomination, the trustee will decide among your dependants and your legal personal representative under the fund's rules.

Binding nominations: check the actual fund rules

A binding nomination is not simply a list of anyone you wish to benefit. Under the section 59(1A) pathway and regulation 6.17A, nominees must be a legal personal representative or a superannuation-law dependant. Section 10 includes a spouse, any child and a person in an interdependency relationship; financial dependency can also matter. A former spouse's tax status alone does not make them a permitted fund nominee. Regulation 6.22 also restricts payment recipients, with a limited fallback where the trustee cannot find any dependant or legal personal representative after reasonable enquiries.

Where an APRA-regulated fund uses the section 59(1A)/regulation 6.17A pathway, a notice lapses three years after signing, confirmation or amendment, or sooner if the fund's rules specify a shorter period. The regulation requires signing and dating before two adult witnesses who are not nominated recipients and their signed declaration. But not every public-fund nomination must lapse at three years: governing rules can offer trustee-consented non-lapsing arrangements under section 59(1)(a). Check which pathway your fund offers, whether the trustee has accepted it and any conditions ending it.

SMSFs require a separate deed-based analysis: do not import the public-fund three-year rule or assume every SMSF nomination is non-lapsing. Check the current deed, amendments, execution requirements, expiry provisions and permitted recipients. For the section 59(1A)/regulation 6.17A pathway, regulation 6.17A(4A) also addresses court orders restraining payment or requiring amendment or revocation of a nomination, or prohibiting a member from giving one. SMSFs are not subject to regulation 6.17A, but relevant court orders and other statutory restrictions must still be checked. Changing your Will does not itself change a nomination.

Tax dependency is a different question

Section 302-195(1)(a) of the Income Tax Assessment Act 1997 (Cth) expressly includes a spouse or former spouse as a death benefits dependant. A qualifying lump sum paid to that person is not assessable and not exempt income under section 302-60. This tax rule does not require ongoing financial dependency and does not determine whether the fund can lawfully pay them directly. A former de facto spouse can qualify under the tax definition even when they no longer qualify as a spouse under fund law.

An adult child is a superannuation-law dependant, but is not automatically a tax-law death benefits dependant. They may meet the financial-dependency or interdependency tests; otherwise a death-benefit lump sum's tax-free component remains tax-free, while its taxable component is assessable under sections 302-140–302-145, with the statutory offsets and any applicable Medicare levy considered. This summary concerns lump sums: pensions have different eligibility and tax rules. Payment through the estate does not automatically eliminate tax: section 302-10 looks to the dependency status of the beneficiaries who have benefited or may be expected to benefit. Our guide to superannuation death benefits for adult children covers the specialist tax issues.

Review every nomination with each fund, including any life insurance held through super. Self-managed superannuation funds raise further issues, because the fund deed and the identity of the remaining trustees can be decisive. Our guides to binding death benefit nominations and superannuation and your Will explain the options. Changing a nomination does not stop super being included in a family law property settlement, which can deal with super by a splitting order or agreement, as explained in our guide to superannuation splitting on divorce.

Enduring powers of attorney

An enduring power of attorney made under the Powers of Attorney Act 2014 (Vic) lets your attorney make financial or personal decisions for you, depending on its terms, including if you lose capacity. Many couples appoint each other.

Section 54(1) revokes the power so far as it gives power to an individual attorney who, after appointment, becomes an insolvent under administration, becomes the principal's care worker, health provider or accommodation provider, or, for financial matters, is convicted or found guilty of an offence involving dishonesty. These are not general revocations of every co-attorney's authority. Separation and divorce are not among them. A separated or divorced partner can therefore remain your attorney unless you act.

While you have capacity, you can revoke an enduring power of attorney in the form and with the witnessing the Act requires, and you should take reasonable steps to tell the attorney and anyone known to be relying on it. Making a new enduring power of attorney appointing someone else is usually done at the same time. Our guide to revoking an enduring power of attorney covers the process. If you have any concern that an attorney is misusing the power, get advice urgently.

Current section 55 generally revokes an earlier enduring power when a later one is made, unless the principal specifies otherwise in the later document. It is not the former rule of revocation only to the extent of inconsistency. Section 151 applies the amended rule to continuing powers made under the original 2014 Act. Sections 152–153 also apply the current Part 5 ending provisions, including section 55, to old financial enduring powers and enduring guardianships that remained in force when the amendments commenced on 1 May 2017. If retaining part of an earlier power, identify it expressly rather than assume a new financial appointment leaves personal powers untouched.

Financial enduring powers made before 1 September 2015 under the Instruments Act 1958, and enduring guardianships made under the Guardianship and Administration Act 1986, are not invalid just because those laws were replaced. Sections 142–143 preserve them and the applicable earlier law, subject to the provisions of the 2014 Act expressly applied to them, including the later changes in sections 152–153. Section 156 also preserves documents executed under the specified temporary 2020 electronic-signing and witnessing rules; the end of those rules did not itself invalidate compliant documents. Check the date, scope, execution and any later revocation of every document. A general enduring power does not by itself create a new medical treatment decision maker appointment; any medical authority preserved from an older power also needs a separate review.

Medical treatment decisions

If you have appointed your partner as your medical treatment decision maker under the Medical Treatment Planning and Decisions Act 2016 (Vic), that appointment does not end because you separate or divorce. Under section 38, it remains in force until revoked in accordance with the Act or the appointee resigns. A new appointment does not simply erase an earlier one. Section 28(2) gives priority to the first person listed in the appointment who is reasonably available, willing and able to act. Expressly revoke an unwanted appointment using the section 30 process while you have capacity, and inform the appointee.

Older documents may still matter, but the appointment must have remained in force at the relevant transition. Section 102(2) treats an agent or alternate agent under an enduring power of attorney (medical treatment) in force immediately before the Medical Treatment Act 1988 was repealed on 12 March 2018 as an appointed medical treatment decision maker. Section 103(1) does the same for an attorney whose medical treatment authority continues under section 155 of the Powers of Attorney Act. Section 103(2) covers a saved enduring guardian who had medical treatment authority immediately before that provision commenced. The latter two appointments operate only to the extent of the authority in the saved document. Section 102(1) separately preserves a refusal of treatment certificate that was then in force, under the applicable earlier law until revoked or otherwise ineffective; it is not automatically converted into a new advance care directive.

Section 55 first recognises an appointed decision maker who is reasonably available, willing and able to decide. If that does not apply, a VCAT-appointed guardian with medical authority comes next, subject to the same availability requirements. If neither applies, the first qualifying person in a close and continuing relationship is the spouse or domestic partner, then primary carer, then adult child, parent or adult sibling. Within each of those last three categories the oldest qualifying person has priority. A separated partner may no longer meet that close-and-continuing-relationship requirement even while still married or registered; divorce removes spouse status in the fallback hierarchy, not an existing appointment. These are the rules for adults outside the separate mental-health-patient regime: section 55(5) excludes mental health patients, for whom the Mental Health and Wellbeing Act 2022 must also be considered. Uncertainty is unhelpful in a medical crisis. Appointing the person you want, or revoking an appointment you no longer want, removes the doubt. See our guide to appointing a medical treatment decision maker.

Jointly owned property

Many separated couples still jointly own their home. If you hold it as joint tenants and you die, your interest generally passes to the surviving joint tenant by survivorship. It does not form part of your estate and is not controlled by your Will. If you hold it as tenants in common, your share does form part of your estate.

Joint bank accounts also require a separate review. Survivorship commonly allows the surviving account holder to receive the balance, but the bank mandate is not conclusive of beneficial ownership. Contributions, intention, trusts and competing claims may change the result. Do not assume every joint-account balance is either entirely in the estate or entirely outside it, or move funds without checking any family law obligations.

A joint tenancy can be severed so that the owners hold as tenants in common. In Victoria, section 72(3) of the Property Law Act 1958 (Vic) allows a person to convey land to themselves, which is one way severance is commonly approached. The procedure, registration and evidence required should be checked in each case.

Severance during a separation is not purely an estate planning step. It may need to be considered alongside any family law restraint or undertaking, any caveat, and section 106B of the Family Law Act 1975 (Cth), which allows the Court to set aside or restrain a disposition that is made to defeat, or is likely to defeat, an existing or anticipated order, in proceedings under that Act. A Will normally records what happens at death, but its label does not confer blanket immunity on an associated instrument or disposition. Super nominations and steps affecting fund control, as well as lifetime asset dealings, need separate checks against orders, undertakings and section 106B. Do not transfer, mortgage or sell property after separation without advice. Our guides to spending or transferring assets after separation and survivorship and real property in deceased estates explain these issues further.

Action checklist after separation

1. Make a new Will that reflects your current wishes, executors, guardians and trusts for children.
2. If your relationship is registered, get advice about revocation under the Relationships Act and confirm with the Registrar that revocation is complete; separation or lodging an application alone does not end registration.
3. Review every superannuation and insurance nomination, including any self-managed fund deed and nomination.
4. Review and expressly revoke or replace unwanted enduring powers, checking document dates and specifying any earlier powers to be retained.
5. Revoke or make a medical treatment decision maker appointment and review any advance care directive.
6. Find out how jointly owned property is held, and get advice before severing or dealing with it.
7. Check bank accounts, investments and business or trust documents that give your former partner control or benefits on your death.
8. Coordinate with your property settlement, and review everything again once it is finalised and when any divorce takes effect.

These steps are best taken with your estate planning lawyer and your family law lawyer working together. Parke Lawyers can assist with both through our Wills and estate planning and family law teams. For property settlement steps and time limits, see our complete guide to property settlement after separation.

Frequently Asked Questions