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Marriage, divorce, and your will.
The legal effects on your will vary dramatically depending on your relationship status. Marriage revokes your will entirely. Divorce doesn't. Separation has no effect at all.
Your relationship status has significant legal implications for your will. Many people assume their will remains valid regardless of life changes. In New Zealand, that's not always the case.
The Wills Act 2007 sets out specific rules about when a will is revoked, when it's partially affected, and when it continues unchanged. Understanding these rules helps you ensure your wishes are carried out.
How relationships affect your will.
Each relationship event has different legal consequences for your existing will.
Marriage
WILL REVOKED
Your existing will is automatically cancelled. You die intestate unless you make a new will.
Civil Union
WILL REVOKED
Same effect as marriage. The Civil Union Act 2004 gives civil unions identical legal status.
Divorce
PARTIALLY AFFECTED
Will remains valid. Ex-spouse treated as having predeceased you. Gifts to them fail.
Separation
NO EFFECT
Your will is completely unaffected. Estranged spouse remains beneficiary and executor.
Marriage revokes your will
Wills Act 2007, section 18
When you marry or enter a civil union, any will you made beforehand is automatically revoked. This isn't a partial effect. The entire will is cancelled. If you die after marrying without making a new will, you die intestate.
This catches many people
A person might marry and assume their existing will protects their children from a previous relationship. It doesn't. That will no longer exists. The intestacy rules now apply.
The exception: "in contemplation of marriage"
A will made "in contemplation of" a specific marriage survives that marriage. But this requires:
- Express words in the will stating it was made in anticipation of marrying a particular person
- The actual marriage must be to that specific person
- The will should indicate it's intended to remain valid after that marriage
Practical advice: If you are engaged and want your current will to survive the marriage, have it updated with the appropriate contemplation clause. Or make a new will shortly after marrying.
Divorce does not revoke your will
Wills Act 2007, section 19
Unlike marriage, divorce does not revoke your will. Your will remains valid. However, the law treats your former spouse as if they had died before you.
What this means in practice:
Gifts to your ex-spouse fail
They're treated as having predeceased you. What happens to those assets depends on your will's backup provisions.
They lose executor role
If your ex was named as executor, they can no longer act. Your backup executor takes over.
Potential problem
If your will says "everything to my spouse, and if they predecease me, to their children" then after divorce, your assets may pass to your ex-spouse's children rather than your own. The will's wording matters significantly.
For this reason, most people should review and update their will after divorce to ensure it properly reflects their changed circumstances and intended beneficiaries.
Separation has no effect
The critical gap many miss
This is where many people are caught out. Separation has absolutely no legal effect on your will.
Your estranged spouse remains your beneficiary
Until your divorce is finalised, your will operates exactly as written. If your will leaves everything to your spouse, that's exactly what happens if you die while separated.
The separation might be acrimonious. You might have been living apart for years. You might be in a new relationship. None of this matters legally. Until the divorce order is made, your spouse benefits under your will.
Urgent advice: If you've separated from your spouse, update your will immediately. Don't wait for the divorce to be finalised. The period between separation and divorce can be lengthy, and life is unpredictable.
Note that while you can change your will during separation, relationship property division may still affect what you actually own. Get legal advice on both the will and property aspects.
De facto relationships
Different rules apply
De facto relationships are treated differently from marriages and civil unions. Entering a de facto relationship does not revoke your will. Ending one has no automatic effect either.
But de facto partners have legal rights
After three years of living together as a couple, a de facto partner gains significant legal rights that can affect estate planning:
Family Protection Act 1955
A de facto partner can claim against your estate if not adequately provided for in your will.
Administration Act 1969
If you die intestate, a de facto partner of three years or more shares in your estate under the intestacy rules.
Property (Relationships) Act 1976
A surviving de facto partner can elect to have relationship property divided rather than take under the will.
Related resources:
Civil unions
Same treatment as marriage
The Civil Union Act 2004 gives civil unions the same legal status as marriages. For wills:
Entering a civil union
Revokes your existing will (same as marriage)
Dissolution of civil union
Partner treated as having predeceased (same as divorce)
Since the Marriage (Definition of Marriage) Amendment Act 2013, same-sex couples can marry. However, existing civil unions remain valid and continue to have the same legal effect as marriages.
Note: If you entered a civil union before 2013 and later married, the marriage would revoke any will made after the civil union but before the marriage. Each marriage (or civil union) is a separate revocation event.
Remarriage and blended families
When it gets complicated
Second (or subsequent) marriages create particular challenges for estate planning. The will you made during your first marriage is revoked when you marry again. This can have unintended consequences for children from your first marriage.
Common scenario
John has two children from his first marriage. He remarries Sarah but doesn't make a new will. John dies. Because marriage revoked his will, the intestacy rules apply. Sarah gets the house and personal chattels, plus the first $155,000. John's children share the remainder. If John's estate is modest, his children may receive very little.
Even if John makes a new will leaving everything to Sarah, there's a risk. Sarah might later leave everything to her own children, or to a new partner after John dies. John's children could end up with nothing from his estate.
Solutions for blended families
- • Life interest provisions that protect your spouse while preserving assets for children
- • Testamentary trusts that control when and how children inherit
- • Contracting out agreements about relationship property
- • Mutual wills (used cautiously and with full legal advice)
When to update your will.
You are about to marry or enter a civil union
criticalMake a new will immediately after, or include a contemplation clause before
You've separated from your spouse
criticalDon't wait for divorce. Update now to remove them as beneficiary and executor
Your divorce has been finalised
highReview to ensure backup provisions work as intended now that ex-spouse is removed
You've entered a de facto relationship
highAfter 3 years, your partner has legal rights that may affect your estate plan
Your de facto relationship has ended
highIf they're named in your will, update it to reflect your changed wishes
You are remarrying with children from a previous relationship
mediumConsider life interests or other structures to protect all family members
Key Takeaways
Related Resources
Learn more about wills and relationship planning.
Related Guide
Follow our step-by-step process to create or update your will after a relationship change.
Read the Creating Your Will GuideRelated Reading
5 life events that should trigger a will review
Certain life changes should prompt you to review your will. Marriage revokes your will automatically. Other events may mean your existing will no longer reflects your wishes.
What happens if someone dies without a will in New Zealand
When someone dies without a will, a fixed legal formula determines who inherits. This may not match what they wanted.