Can Your Ex Inherit Under Your Will in South Australia?

Relationships change, but many people forget to update their wills. A common concern is: can your ex inherit under your will? In South Australia, the answer depends on whether you are separated or legally divorced, and whether your will has been updated to reflect those changes.

With the introduction of the Succession Act 2023 (SA), effective from 1 January 2025, the law around wills and ex-partners has been clarified. This article explains what happens if your ex is still named in your will, and what steps you should take to protect your estate.

Separation vs Divorce – Why It Matters

• Separation: If you have only separated but not legally divorced, your ex-partner is still legally treated as your spouse. This means:

  
  

  • They may still benefit if they are named in your will.

  • They may also be eligible to make a family provision claim if left out

    
    

• Divorce: Under the Succession Act 2023 (SA), divorce generally revokes gifts and appointments made to your ex-spouse in your will. For example:

  
  

  • If your will left property or money to your former spouse, those gifts are revoked.

  • If your ex was appointed executor or trustee, those roles are cancelled.

    
    

Exception: If your will was made after divorce and still includes your ex, the law assumes you intended to benefit them.

Can an Ex Still Inherit?

Despite the revocation rules, there are still ways an ex may inherit:

1. Outdated Wills: If you separated but never divorced, the ex may still inherit.

2. Family Provision Claims: Even after divorce, if your ex was financially dependent or receiving maintenance, they may apply for provision from your estate.

3. Joint Property: Assets held as joint tenants (such as the family home) may automatically pass to your ex, unless changed.

   
   

The Succession Act 2023 (SA) – Key Changes

The new legislation has modernised inheritance law in South Australia. Key changes relevant to divorced couples include:

• Automatic Revocation: Divorce automatically cancels gifts or appointments to your ex, unless your will states otherwise.

• Family Provision: Former spouses can still apply for provision in limited circumstances.

• Clarity on Intestacy: If you die without a will after divorce, your ex will not inherit under intestacy laws.

  
  

This provides greater certainty for families, but it also highlights the need to review and update your estate plan after separation.

Practical Steps to Protect Your Estate

1. Update Your Will: Don’t rely on divorce alone. Make a fresh will after major life changes.

2. Review Superannuation & Insurance: Binding nominations may still benefit an ex unless updated.

3. Check Property Ownership: Change joint tenancies if you don’t want assets passing to your ex.

4. Consider Binding Financial Agreements: These can provide additional protection in family law contexts.

5. Seek Legal Advice: Estate planning is complex, especially with blended families, second marriages, and ongoing financial obligations.

   
   

FAQs – Can Your Ex Inherit Under Your Will?

Does divorce automatically remove my ex from my will?

Yes. Under the Succession Act 2023 (SA), divorce generally revokes gifts and appointments to an ex-spouse.

What if we are separated but not divorced?

Separation does not revoke a will. Your ex may still inherit unless you update your will.

Can my ex contest my will?

Yes, if they can show financial dependence or an entitlement under family provision laws.

Do I need to update super and insurance nominations too?

Yes. Divorce does not automatically change beneficiary nominations for superannuation or life insurance.

What if I want my ex to still inherit?

You must make a new will clearly stating that intention, even after divorce.

Final Thoughts

The short answer to “Can your ex inherit under your will?” is:

• Yes, if you have not divorced or updated your estate planning documents.

• No, if you are divorced, unless you intentionally include them, but even so, they may contest your will in certain circumstances.

The safest approach is to review your will and estate plan after separation or divorce. This ensures your assets are protected and distributed according to your wishes, not outdated assumptions.

At Craig McKay Legal, we help individuals and families across South Australia protect their estates and avoid disputes. If you have recently separated, divorced, or entered a new relationship, we strongly recommend reviewing your will.

You can book a complimentary no-obligation telephone Will Review or Enquiry with Craig today to see whether updating your Will is recommended.

Or Contact us today for expert advice on separation, divorce and the division of matrimonial and de facto property.

This article is for general information only and is not a substitute for legal advice. For advice specific to your situation, please contact our office.