Does Marriage Revoke Your Will? Understanding NSW Succession Laws

Family Provision Claims, Contesting a Will, Challenging a Will, Intestacy

Getting married is one of life's most joyful moments, but many couples don't realise how marriage affects their existing wills. In New South Wales, marriage automatically revokes any will you made before your wedding day. This crucial legal principle can have significant consequences for your estate planning and your family's financial security.

How Marriage Affects Your Existing Will in NSW

Under section 12 of the Succession Act 2006 (NSW), marriage automatically revokes your previous will. This means that if you die after getting married without creating a new will, you will be considered to have died intestate (without a valid will).

When someone dies intestate in NSW, their estate is distributed according to predetermined legal rules:

• If you have no children: Your spouse inherits your entire estate

• If you have children with your current spouse: Your spouse inherits everything

• If you have children from previous relationships: Your spouse receives personal effects, a statutory legacy ($587,649 in May 2025*), and half of the remaining estate, while your children from previous relationships share the other half.

  
  

  *This amount is adjusted for CPI, and if the estate does not cover the statutory legacy, then the spouse will be entitled to everything in the estate

This automatic distribution may not align with your wishes, making it essential to understand when your will remains valid after marriage.

Exceptions: When Your Will Survives Marriage

NSW law recognises several important exceptions where marriage does not revoke your existing will.

Wills Made in Contemplation of Marriage

Your will remains valid if it was created with a specific marriage in mind. This applies to two types:

1. Wills made contemplating a particular marriage: These remain valid whether or not the will explicitly mentions the upcoming marriage

2. Wills made contemplating marriage generally: These only remain valid if they expressly state they were made "in contemplation of marriage"

You must have more than just awareness that marriage might happen someday. The courts look for "thoughtful consideration of a prospect, or an expectation, of marriage" rather than merely being conscious of the possibility.

Specific Provisions That Survive Marriage

Even if your will is revoked by marriage, certain provisions remain valid:

• Gifts to your future spouse: Any bequests made to someone who later becomes your spouse remain effective

• Appointments: Naming your future spouse as executor, trustee, or guardian remains valid after marriage

Can You Revive a Revoked Will?

Yes, if marriage has revoked your will, you can restore it through:

1. Re-execution: Formally signing your will again with proper witnesses

2. Creating a new will: Writing a new will that shows clear intention to revive the previous one

A revived will takes effect from the date of revival, not the original execution date.

What About Divorce and Separation?

Marriage isn't the only life event that affects your will.

During Separation

If you separate from your spouse, your will remains valid until divorce is finalised. Since divorce requires 12 months of separation, updating your will immediately after separation protects your intentions.

After Divorce

Divorce automatically revokes:

• Any gifts to your former spouse

• Their appointment as executor, trustee, or guardian

However, divorce does not revoke:

• Trustee appointments for property benefiting children (including your former spouse's children)

• Your former spouse's right to make a family provision claim against your estate

Protecting Your Estate: Practical Steps

To ensure your estate is distributed according to your wishes:

1. Create a new will immediately after marriage that reflects your current circumstances

2. Update your will after major life changes, including separation, divorce, or having children

3. Clearly express your intentions if making a will before marriage that you want to survive the wedding

4. Seek legal advice to ensure your will complies with NSW succession laws

Why Professional Legal Guidance Matters

Estate planning involves complex legal requirements and family dynamics. A qualified succession lawyer can help you:

• Draft a will that survives marriage when appropriate

• Ensure your estate plan reflects your current family situation

• Navigate the requirements for valid will creation and revival

• Understand how divorce affects existing wills

Don't leave your family's financial security to chance. Understanding how marriage affects your will is the first step in protecting your loved ones and ensuring your wishes are honoured.