Does Marriage Revoke Your Will in NSW? A Guide to Section 12 of the Succession Act
- Justeen Dormer
- Aug 14
- 10 min read
Estate Planning
Yes. Marriage revokes your existing will in New South Wales. Section 12 of the Succession Act 2006 (NSW) cancels the whole will on the day you marry, unless a narrow exception applies. If you die after the wedding without a new will, you die intestate and the law decides who inherits. This page explains the rule, the exceptions and the steps to take before you marry. It covers NSW law. Other states and territories differ.
Key points
Marriage revokes your entire will in NSW under section 12 of the Succession Act 2006 (NSW).
A will made in contemplation of a particular marriage survives that marriage, and it does not have to say so on its face.
A will expressed to be made in contemplation of marriage generally survives, but only if the will says so.
Divorce does not revoke your whole will. It cancels the gifts and appointments in favour of your former spouse.
Separation changes nothing. Starting or ending a de facto relationship changes nothing either.
If you marry and die without a new will, your spouse may take the whole estate and your children from an earlier relationship may take nothing.
Marriage revokes your will in NSW
What section 12 of the Succession Act 2006 (NSW) says
Section 12(1) provides that a will is revoked by the marriage of a testator. The rule is automatic. It operates whether or not you know about it and whether or not anyone tells you. Revocation happens when the marriage is solemnised, so your will is gone from the day of the ceremony.
A marriage solemnised overseas produces the same result if Australian law recognises it under the Marriage Act 1961 (Cth). Destination weddings count.
What survives revocation of a will by marriage
Section 12(2) preserves three things and nothing else.
A disposition to the person you are married to at the time of your death.
An appointment of that person as executor, trustee, advisory trustee or guardian.
A will made in the exercise of a power of appointment, where the property would not pass to your executor, your administrator or NSW Trustee and Guardian if the power were not exercised.
Two points are commonly missed. First, section 12(2)(a) fixes on the person you are married to when you die, not the person you married after making the will. If you leave your estate to your fiancée, marry her, divorce, marry someone else and then die, the gift does not survive.
Second, a surviving gift is not a surviving will. Every other clause falls away. Gifts to your children, your siblings and your chosen charities all go, and so does your substitute executor.
Wills made in contemplation of marriage
Contemplation of a particular marriage (section 12(3))
A will made in contemplation of a particular marriage is not revoked by the solemnisation of that marriage, whether or not the contemplation is expressed in the will.
That last clause matters. Most online summaries state that the will must contain a contemplation clause. That is wrong for section 12(3). Contemplation is a state of mind and you may prove it by evidence outside the will.
Proving it is the difficulty. In Re Estate Grant, deceased [2018] NSWSC 1031, the Supreme Court of New South Wales held that awareness that a marriage might happen is not enough. The testator must have the particular marriage in mind when making the will and must turn their mind to the rights and obligations that flow from it. The will in that case was revoked and the estate passed on intestacy.
So draft the clause anyway. An express clause naming your intended spouse removes an expensive argument after you die.
Contemplation of marriage generally (section 12(4))
A will expressed to be made in contemplation of marriage generally is not revoked by a later marriage. Here the words must appear in the will. Section 12(4) uses the word “expressed”, so a general contemplation that lives only in your head does not save the will.
When a contemplation clause fails
A clause fails in four common ways.
It names no one. It can then only operate under section 12(4), and only if the will says it is made in contemplation of marriage generally.
It names one person and you marry someone else.
The will is expressed to be conditional on the marriage taking place, and the marriage does not happen. The will fails entirely.
The will is not conditional, the marriage does not happen and the will keeps operating in favour of a person you no longer intend to benefit.
What happens if you marry and die without a new will
You die intestate. Chapter 4 of the Succession Act 2006 (NSW) decides who takes your estate, and your wishes are irrelevant.
Who inherits under the NSW intestacy rules
You leave a spouse and no children. Your spouse takes the whole estate.
You leave a spouse and children, and all your children are also your spouse's children. Your spouse takes the whole estate. Your children take nothing.
You leave a spouse and at least one child who is not your spouse's child. Your spouse takes your personal effects, a statutory legacy and half of the remainder. Your children share the other half.
“Spouse” is wider than most people expect. Section 104 covers a person married to you immediately before your death and a party to a domestic partnership with you. Section 105 defines a domestic partnership as a registered relationship, or a de facto relationship that has lasted two years continuously or has produced a child.
The NSW statutory legacy and how it is indexed
The statutory legacy is set by section 106. It is not a round number and it is not fixed annually. The formula is R = A x (C / D), where A is $350,000, C is the Consumer Price Index number for the last quarter published before the date of death and D is the index number for the December 2005 quarter. The index used is the All Groups index for the weighted average of the eight capital cities.
The figure changes every quarter and is locked in by the date of death. For deaths on or after 30 July 2026 the last published quarterly index is the June quarter 2026, which gives a statutory legacy of $615,054.96.
The working is $350,000 x (102.31 / 58.22). The June quarter 2026 index is 102.31 and the December 2005 quarter index is 58.22, both on the September 2025 reference base. Australian Bureau of Statistics series A2325846C, published on 29 July 2026. The figure changes again when the September quarter 2026 index is published in late October 2026.
Two further rules apply. If the estate is not large enough, the legacy abates and the spouse takes what there is. If the legacy is not paid within one year, interest runs at 2% above the Reserve Bank cash rate.
One trap catches practitioners. The Australian Bureau of Statistics re-referenced the quarterly CPI to a September 2025 base from the December quarter 2025, and now publishes to two decimal places. Section 106(7) requires index numbers on the new base, or numbers converted using the Australian Statistician's conversion factor.
Do not convert the December 2005 figure yourself. The old base index number was published to one decimal place, so converting it with the published factor introduces a rounding error of roughly $220 in the legacy. Take the December 2005 quarter figure of 58.22 from the re-referenced series instead.
Worked example: a second marriage with children from a first relationship
Marcus marries Priya in 2025. He has two children from his first marriage. He does not make a new will. He dies in September 2026 leaving personal effects and a net estate of $1.4 million.
Priya takes the personal effects, the statutory legacy of $615,054.96, and half of the remaining $784,945.04. Her total is $1,007,527.48. Marcus's two children share $392,472.52, which is $196,236.26 each.
Change one fact and the outcome changes completely. If the net estate were $600,000, Priya would take all of it and Marcus's children would take nothing.
Marriage, divorce, separation and de facto relationships compared
Life event | Effect on your will | Provision |
Marriage | Revokes the whole will, subject to the exceptions below | s 12(1) |
Will made in contemplation of a particular marriage | Survives that marriage, whether or not the will says so | s 12(3) |
Will expressed to be in contemplation of marriage generally | Survives, but only if the will says so | s 12(4) |
Divorce or annulment | Revokes gifts and appointments in favour of the former spouse. The rest of the will stands | s 13 |
Separation without divorce | No effect | none |
Starting a de facto relationship | No effect on the will. The partner may gain rights on intestacy and standing to claim | ss 104, 105, 57(1)(b) |
Ending a de facto relationship | No effect. Gifts to the former partner remain | none |
Registering a relationship | No effect on the will | none |
Does divorce revoke a will in NSW?
Divorce revokes part of your will, not all of it. Under section 13(1), a divorce order or an annulment revokes three things.
A beneficial disposition to your former spouse.
An appointment of your former spouse as executor, trustee, advisory trustee or guardian.
A grant of a power of appointment exercisable by, or in favour of, your former spouse.
The will then operates as if your former spouse had died before you. Everything else in the will stands.
Three things survive the divorce.
A contrary intention expressed in the will.
Your former spouse's appointment as trustee of property left on trust for beneficiaries who include your former spouse's children.
A power of appointment exercisable by your former spouse only in favour of children of whom you are both parents.
Divorce also leaves your former spouse's right to claim against your estate intact. A former spouse is an eligible person under section 57(1)(d). They must also satisfy the court that there are factors warranting the application.
Separation does not change your will
Separation has no effect on your will at all. Your estranged spouse remains your executor and your principal beneficiary until a divorce order takes effect.
A divorce application ordinarily requires 12 months of separation, and the order takes effect a month and a day after it is made. Your estranged spouse is therefore in your will for well over a year, and indefinitely if you never divorce. Make a new will in the week you separate.
De facto relationships, starting one and ending one
NSW law is asymmetric here, and the asymmetry catches people out.
Moving in with a new partner does not revoke your will.
Separating from a de facto partner does not cancel the gifts you left them. There is no de facto equivalent of section 13.
Registering a relationship under the Relationships Register Act 2010 (NSW) does not revoke your will either. Section 12 is triggered by marriage, not registration.
A new de facto partner may still inherit on intestacy under sections 104 and 105, and may still claim family provision under section 57(1)(b).
The practical result is that a former de facto partner named in a 15-year-old will stays a beneficiary and an executor until you change it.
Can a will revoked by marriage be revived?
Yes. Section 15(1) allows you to revive a revoked will by re-executing it, or by executing a new will that shows an intention to revive it.
Two rules qualify this.
If part of a will was revoked and the will was later revoked entirely, reviving it restores only the part revoked most recently, unless the reviving instrument shows a contrary intention.
A revived will is taken to have been executed on the day it is revived, not on its original date.
In practice a fresh will is usually cheaper, faster and less contestable than reviving an old one.
Second marriages and blended families
Section 12 does its worst damage in blended families, because the intestacy rules that fill the gap were not designed for your family.
The risk of leaving everything to your new spouse
If your whole estate passes to your new spouse, your children inherit only what your spouse later chooses to leave them. Your spouse may make a new will the week after your funeral. Your spouse may also remarry, which revokes their will and hands the problem to the next generation.
Life interests, rights of residence and testamentary trusts
Several structures let you provide for a new spouse without disinheriting your children.
A life interest or a right of residence in the family home for your spouse, with the property passing to your children on their death or earlier departure.
A testamentary trust with an independent trustee, which also gives your children asset protection and tax flexibility.
A binding death benefit nomination directing your superannuation to your children, with other assets to your spouse.
Mutual wills, though these bind only by contract and are a reliable source of litigation.
Family provision claims after you die
Your new spouse, your children, your former spouse and a de facto partner can all be eligible persons under section 57. A claim must be filed within 12 months of the date of death.
New South Wales also has notional estate orders, which no other state has. Under sections 75 to 80 the court can claw back assets you gave away or held as joint tenants and use them to satisfy a family provision order. Structuring around a claim is harder in NSW than elsewhere.
What marriage does not affect
Marriage does not touch assets that pass outside your will, and it does not touch every document you have signed.
Superannuation. Your death benefit passes under the fund's trust deed and any nomination, not under your will. Marriage does not revoke a binding nomination, although many nominations lapse after three years.
Life insurance held outside superannuation. It is paid to the nominated beneficiary.
Property held as joint tenants. It passes to the surviving joint tenant by survivorship and never enters your estate.
Family trusts and company assets. You do not own them personally, so your will does not deal with them. Control passes under the trust deed and the company constitution.
An enduring power of attorney. Marriage does not revoke it.
An appointment of enduring guardian. Marriage does revoke it, unless you marry the person you appointed.
Marriage later in life and questions of capacity
The capacity needed to marry under the Marriage Act 1961 (Cth) is a lower threshold than the capacity needed to make a will. A person can validly marry at a point when they could no longer validly make a will.
The consequence is stark. The marriage revokes the will made years earlier when the person was well, and the new spouse takes on intestacy. New South Wales has no statutory protection against this. If you are concerned about an ageing parent, get advice early rather than after the wedding.
What to do before you marry
Make a new will, or a will expressed to be made in contemplation of your marriage to your intended spouse, naming them.
Review your superannuation death benefit nomination and your life insurance nomination.
Check how you hold your property, as joint tenants or as tenants in common.
Review your enduring power of attorney and make a fresh appointment of enduring guardian after the wedding.
If either of you has children from an earlier relationship, get advice on a life interest or a testamentary trust before the wedding, not after it.
Get advice before the wedding, not after it
Marriage revoking your will is one of the few estate planning traps that is entirely avoidable and almost never noticed until someone dies. A will made in contemplation of your marriage, or a new will signed after the ceremony, closes the risk in a single appointment.
Our succession team advises on wills, blended family estate planning, life interests, testamentary trusts, probate and family provision claims across New South Wales. Contact us to review your will before you marry.
This article is general information about New South Wales law. It is not legal advice and it does not take your circumstances into account. Current as at 14 August 2026. The statutory legacy stated here applies to deaths on or after 30 July 2026 and changes when the September quarter 2026 index is published.
