Change Will After Divorce South Australia: Succession Act 2023 Rules

Separation Changes Nothing About Your Will

This is the single most dangerous gap in South Australian estate law, and it catches people every year.

Under the Succession Act 2023 (SA), which took effect on 1 January 2025, physical separation has no legal effect on an existing will. If you separated from your spouse six months ago but haven't finalised the divorce, your will is fully valid exactly as it was written. Every bequest to your former partner, every appointment naming them as executor or trustee — all of it stands.

If you die during the separation period before the FCFCOA issues a final divorce order, your estranged spouse inherits whatever your will says they inherit. They also retain the legal authority to administer your entire estate if you named them as executor.

The only protection during separation is to draft and execute a new will immediately. This interim will should explicitly revoke all prior wills and cancel any gifts, executor appointments, or trustee roles previously given to your former partner.

What Divorce Automatically Revokes

Once your divorce order takes effect — one month and one day after the FCFCOA hearing — Section 19 of the Succession Act 2023 triggers automatic revocations. By operation of law, the finalisation of your divorce revokes:

• Any gift, legacy, or bequest of property made to your former spouse
• Any appointment of your former spouse as executor, trustee, or guardian
• Any power of appointment exercisable by or in favour of your former spouse

The statute applies a legal fiction: your will is read as if your former spouse died on the date your marriage ended. So if your will said "I leave $100,000 to my husband, or if he predeceases me, to my children," the children inherit.

Three Exceptions Where Automatic Revocation Fails

The automatic revocation does not apply in every case. The Succession Act 2023 carves out three exceptions:

Contrary intention. If the will explicitly states that the gifts or appointments should survive a divorce, the automatic revocation doesn't apply. Language like "I leave my house to [name] regardless of whether we remain married" would override the default rule.

Post-divorce re-execution. If the will is formally re-executed or a new codicil is added after the divorce is finalised, and the document shows no intention to revoke the provisions favouring the former spouse, those provisions survive.

Contractual wills. If the bequest was made under a legally binding contract between you and your former spouse — for example, mutual wills where both parties agreed to dispose of property in a specific way — the contractual obligation overrides the automatic revocation.

Intestacy: What Happens If You Die Without a Will

If you die without a valid will (intestate), the Succession Act 2023 determines who inherits. The rules change depending on your legal status:

Separated but not divorced. Your estranged spouse is still your legal spouse. They remain the primary beneficiary under intestacy rules. As of 1 January 2025, the surviving legal spouse receives a statutory legacy of $120,000 (increased from $100,000 under the old law) before the remainder is divided with children.

Financial Agreement in force. There's one protective carve-out: if a valid Financial Agreement under the Family Law Act 1975, entered into on or after 1 January 2025, was in force at the time of death, the separated spouse loses their intestacy entitlement. This applies even if the divorce isn't finalised.

Divorced. Once the divorce is finalised, your former spouse has no intestacy rights at all. Your estate passes to children, then parents, then siblings, and further down the family tree.

Superannuation and Life Insurance Sit Outside Your Will

Your will doesn't control everything. Superannuation death benefits and associated life insurance payouts are not part of your estate — they're paid directly by the super fund trustee according to your nomination.

Divorce does not automatically revoke a Binding Death Benefit Nomination. If your ex-spouse is still named as the sole beneficiary on your BDBN, the trustee is legally required to pay them the full death benefit, which often includes several hundred thousand dollars in life insurance. This happens regardless of what your will says and regardless of whether you've divorced.

Contact your super fund directly, execute a new BDBN, and name updated beneficiaries — your children, another person, or your Legal Personal Representative (which directs the benefit into your estate to be distributed according to your will).

Family Provision Claims After Divorce

Even after divorce, a former spouse can contest your will under Part 6 of the Succession Act 2023 by applying to the Supreme Court for further provision from your estate. However, a divorced former spouse faces a higher bar than a current or separated spouse.

A former spouse can generally only claim if they can demonstrate that at the time of your death, they were receiving or entitled to receive spousal maintenance, or had an ongoing relationship of financial dependency. The court also considers the wishes of the deceased as the most important factor in assessing any claim.

What to Do Right Now

If you're separated but not yet divorced, draft an interim will immediately — don't wait for the divorce order. Update your superannuation death benefit nomination. Review whether any property is held as joint tenants (the right of survivorship operates independently of your will and passes your share directly to the surviving co-owner).

Our South Australia After-Divorce Checklist includes an estate planning checklist that walks through will updates, BDBN revisions, joint tenancy severance, and the interaction between the Succession Act 2023 and your super fund nominations — sequenced so nothing is missed during the transition.

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