Does Divorce Revoke a Will in NSW?

Short answer: partially. A divorce in NSW doesn't void your entire will — it surgically removes your ex-spouse from specific roles. But separation alone changes nothing, which creates a dangerous gap that catches people out during the mandatory 12-month separation period.

What Section 13 of the Succession Act 2006 Actually Does

Under Section 13 of the Succession Act 2006 (NSW), once a divorce order is finalised, your existing will is automatically modified. Specifically:

• Any gifts or bequests to your former spouse are revoked
• Any appointment of your former spouse as executor, trustee, or guardian is revoked
• The will is read as if your former spouse had died before you

The rest of the will remains in force. If you left 50% of your estate to your spouse and 50% to your children, the spouse's share is handled as though they predeceased you — which means it follows whatever residuary or fallback clauses you included.

The Separation Gap: Your Will Is Completely Unprotected

Here's the dangerous part: separation has no automatic effect on a will under NSW law. Not even a hint of modification.

If you separate from your spouse and die during the mandatory 12-month separation period before your divorce is finalised, your estranged spouse inherits exactly according to the terms of your existing will. If your will names them as sole beneficiary and executor, they control your entire estate — even if you haven't spoken in a year.

If you die without a will (intestate) during separation, it gets worse. Under the intestacy rules in Chapter 4 of the Succession Act 2006, your separated spouse is entitled to a substantial portion of your estate by default. They're still legally your spouse until the divorce order is final.

This isn't a theoretical risk. The separation period is mandatory under Australian family law — you cannot skip it.

What You Should Do Immediately Upon Separation

Don't wait for the divorce to be finalised. The moment you separate:

Draft an interim will. This doesn't need to be elaborate. It needs to redirect your estate away from your estranged spouse and appoint a new executor. Have it witnessed properly under NSW requirements (two witnesses, none of whom are beneficiaries).

Revoke your Powers of Attorney. Divorce does not automatically invalidate Powers of Attorney or Enduring Guardianship in NSW. If your ex-spouse holds your power of attorney, they retain the legal authority to make financial or medical decisions on your behalf until you formally revoke it.

Update Binding Death Benefit Nominations. Your superannuation death benefits are not governed by your will — they're controlled by the beneficiary nomination you filed with your fund trustee. Divorce does not revoke these nominations. If your ex is named on the BDBN, they receive the payout.

After the Divorce Is Finalised

Even though Section 13 strips your ex-spouse from the will, you should still draft a comprehensive new will because:

• The automatic modifications may leave gaps in your estate plan (the residuary clause may not distribute things the way you intend)
• You'll likely want to appoint new executors, trustees, and guardians for your children
• Your asset position has probably changed significantly through the property settlement
• Any new partner or blended family arrangements need to be reflected

The Superannuation Trap

This is worth repeating because it's the single most overlooked post-divorce estate planning issue: your will does not control your super. Superannuation death benefits sit outside your estate entirely.

A Binding Death Benefit Nomination naming your ex-spouse as beneficiary remains valid after divorce unless you actively submit a new nomination to your fund trustee. Many people update their will and assume super is covered — it isn't.

The NSW After-Divorce Checklist includes an estate planning audit worksheet that walks through your will, Powers of Attorney, Enduring Guardianship, and every super and insurance beneficiary nomination — so nothing is left pointing at your former spouse.

See more New South Wales guides →