How marriage can affect your Will

The short answer

Getting married can revoke a will you made before the marriage. Under the Wills Act 2007, marriage (and civil union) revokes an earlier will — unless that will was made in contemplation of the marriage or civil union and says so. If your old will is revoked and you have not made a new one, you effectively have no will.

The automatic revocation rule

The law takes the view that marriage is such a significant change that an earlier will should not be assumed to reflect your wishes any more. So, on marriage or civil union, a will made beforehand is revoked by operation of law. This is automatic — it happens whether or not you thought about it, and whether or not you intended it.

The “made in contemplation” exception

There is an important exception. If a will is made in contemplation of a named marriage or civil union, and the will states that it is made in contemplation of that event, the will survives the marriage or civil union. This is useful for people who want their existing plans — such as providing for children from an earlier relationship — to continue unchanged after the wedding.

What this means in practice

If your pre-marriage will is revoked and you die without a new will, your estate is distributed under the intestacy rules rather than according to your old wishes. In many cases your new spouse or partner will inherit a substantial share — but not necessarily the share or the arrangements you intended. Children from earlier relationships, stepchildren, and the people you wanted to remember may receive nothing at all.

Marriage does not write a will for you

It is easy to assume that marriage automatically protects your partner. It does not. Marriage revokes an old will, but it does not create a new one — you are left with the intestacy rules and relationship property law, which are blunt tools that may not match what you want for your partner, your children or your estate.

Civil unions and de facto relationships

The same automatic revocation rule applies to civil unions. De facto relationships are different: simply entering a de facto relationship does not revoke a will, and the law does not automatically change a will when a de facto relationship begins or ends. That means a will made before a de facto relationship can remain in force even though your life has changed — another reason to review your will whenever your relationship status changes.

What to do before and after marriage

The safest approach is simple:

• before the wedding, make a new will that either replaces your old one or is expressly made in contemplation of the marriage;
• after the wedding, make a new will as soon as practical — even if nothing changes, a fresh will removes doubt;
• review who you have named as executor, beneficiaries and backup beneficiaries;
• think about relationship property and how your assets are held; and
• if you have children from an earlier relationship, consider how the new marriage affects them — and get advice.

When to get advice

See a lawyer before or soon after marriage if any of the following apply:

• it is a second marriage or civil union, or either of you has children from an earlier relationship;
• either of you owns a home or significant assets;
• there is a family trust, business or complex financial structure;
• you want your existing will to survive the marriage (the contemplation exception needs careful drafting);
• you are considering a prenuptial or relationship property agreement; or
• you are unsure whether your current will still works at all.

The bottom line

Marriage can silently revoke a will you thought was settled — and it never replaces it with one you would have chosen. Whether you are about to marry, or have just married, make a new will that reflects your life now. It is one of the most practical wedding preparations there is. Our guide on what a will is and guide on relationships and wills cover the surrounding rules in more detail.