In Australia, divorce often brings tough conversations around parenting arrangements, asset division, and emotional healing. But one legal task is regularly forgotten—and the consequences can be life-altering: wills to protect children after divorce.
According to the Australian Bureau of Statistics, over 49,000 divorces are granted each year. Many of those involve minor children, yet very few parents take the crucial next step of updating their wills. Without doing so, your children could be left without proper guardianship, their inheritance might be mismanaged, or your ex-spouse could control more than you intend.
This article from Legal Finda explores everything you need to know about wills to protect children after divorce. Whether you're newly divorced or years past separation, this guide helps ensure your children’s legal, financial, and emotional interests are protected—both today and in the future.
Wills to Protect Children After Divorce: Why They Matter
Your will is one of the most important legal documents you’ll ever create. It outlines what happens to your assets, your children, and your estate if something unexpected happens to you.
For divorced parents, this is even more important. A will created during your marriage likely names your ex-spouse as executor, trustee, or even guardian. But are they still the person you want handling your estate or caring for your children?
By updating your estate plan, you can:
- Protect your child’s financial future
- Prevent your ex-spouse from controlling your child’s inheritance
- Appoint someone you trust to care for your children
- Avoid family conflict and costly court intervention
Simply put, wills to protect children after divorce are about control, protection, and peace of mind.
Appointing a Guardian in Your Will (Australia)
If you have children under 18, choosing a guardian is one of the most crucial decisions in your will. In Australia, if you pass away without appointing a guardian, the court will make that decision on your behalf.
Many divorced parents assume the surviving parent (their ex) will automatically become the full-time guardian. While this often happens, it's not always appropriate—particularly in cases of estrangement, abuse, or legal complications.
You have the right to nominate someone you trust. This can be a family member, close friend, or anyone capable of providing the care, stability, and values you want for your children.
Appointing a guardian in your will in Australia means the court will take your wishes into serious consideration, and in most cases, follow them unless there are strong objections.
Make sure you:
- Have an open conversation with your nominated guardian
- Include a backup option
- Clearly outline your reasoning in the will or a separate letter of wishes
This ensures that the person raising your children is someone you choose—not someone the court assigns.
How to Make a Will After Divorce with Children
If your previous will was created while married, it’s likely outdated. After divorce, the law may revoke specific clauses relating to your former spouse, but the rest of the document still stands. This can create legal grey areas that confuse executors and courts.
Here’s how to make a will after divorce with children:
- Revoke your old will in writing and declare your new one legally.
- Appoint a new executor (someone other than your ex).
- Nominate a guardian for your minor children.
- Set up a trust or specify when and how your children should access their inheritance.
- Choose a responsible trustee to manage the estate on behalf of your children.
- Revisit and update superannuation and insurance policies.
This process is best done with the help of an estate planning lawyer to ensure the wording is legally binding and nothing important is missed.
Choosing a Trustee for Your Children’s Inheritance
A common mistake many parents make is assuming their child will inherit everything outright. In reality, children under 18 (or even 21, depending on the will) cannot directly control their inheritance. That’s where trustees come in.
A trustee is someone you appoint to manage your children’s inheritance until they are old enough to receive it. The trustee pays for your children’s education, living costs, or other essentials using funds from the estate.
If you do not nominate a trustee, the court may appoint one—or worse, your ex-spouse may step into the role by default.
When choosing a trustee:
- Pick someone financially responsible and emotionally trustworthy.
- Consider naming a professional trustee (such as a lawyer or financial advisor) if family dynamics are complex.
- Outline clear conditions in your will for how and when funds can be accessed.
This approach is key to protecting children’s inheritance after separation.
Structuring a Testamentary Trust
For additional protection, many parents opt to create a testamentary trust in their will. This is a legal structure that holds your assets for the benefit of your children, with specific rules you define.
Advantages of a testamentary trust:
- Protects against financial misuse
- Delays access to inheritance until a set age (e.g. 25 or 30)
- Offers tax benefits and flexibility
- Shields assets from claims by others (including ex-spouses or creditors)
Testamentary trusts are commonly used in estate planning for divorced parents who want to safeguard their children's financial future.
Updating Your Superannuation and Life Insurance
Not all your assets are controlled by your will. Superannuation and life insurance policies require separate beneficiary nominations.
In many cases, divorced Australians forget to remove their former spouse from these policies. If this happens, your ex may still receive your super or insurance payout—even if your will says otherwise.
To prevent this:
- Submit updated binding nominations directly with your super fund and insurer.
- Name your children (or their trust) as beneficiaries.
- Store all updated nomination forms with your will.
Aligning all legal documents is a core principle in wills to protect children after divorce.
Common Mistakes to Avoid
Mistakes in post-divorce estate planning can be costly. Avoid these common errors:
- Assuming your ex is automatically removed from your will.
- Forgetting to appoint a new guardian or trustee.
- Leaving no instructions for how inheritance should be used.
- Not updating superannuation and insurance policies.
- Using DIY templates that lack legal force in complex family situations.
Working with a qualified lawyer through Legal Finda ensures your will is tailored, enforceable, and built to stand up in court.
How Often Should You Review Your Will?
Life changes fast. After divorce, your will should be reviewed and updated:
- Immediately after separation
- After a property settlement
- If your children reach adulthood
- If you remarry or enter a new de facto relationship
- Every three to five years
Your will should grow with your family. Don’t let outdated documents jeopardise your children’s future.
Real Example: When It Goes Wrong
Samantha, a divorced mother of two in Brisbane, passed away unexpectedly at 41. Her old will named her ex-husband as trustee and guardian. Since she hadn’t updated her estate plan, he regained control over her estate—and her children’s finances.
Her family fought in court for over a year to remove him. The children’s access to funds was delayed, and legal costs consumed a large portion of the estate.
A properly updated will could have avoided all of this. Wills to protect children after divorce aren’t just paperwork—they are a legal safety net.
Conclusion
To recap, if you’ve divorced and have children, there’s no time like the present to update your will. It’s one of the most important things you can do to protect your family, your values, and your children’s financial future.
Remember:
- Appoint a guardian you trust
- Name a responsible trustee
- Update superannuation and insurance
- Structure your will to reflect your post-divorce reality
Creating or updating wills to protect children after divorce puts you in control—not the courts, not your ex, and not chance.
Let Legal Finda help you find an experienced estate lawyer who will guide you through this process with clarity and care. Start today — because protecting your children starts with planning ahead.
