Estate Planning for Same-Sex Marriage in Australia – What’s Changed

13 April 2018

Recent legislation changes in Australia now mean same-sex couples can legally marry, but it also changes succession planning laws.

While it may be the last thing on many same-sex couples minds as they plan their wedding celebrations, the amendment to the definition of marriage has important implications for Wills and Estate Planning they should consider.

Existing Wills May Not Be Valid

The amendment to the Marriage Act means that the succession laws that apply to heterosexual couples, now also apply to same-sex spouses.

So when a same-sex couple in Australia marries, or is deemed legally married (such as, in the case of same-sex marriages performed overseas but recognised by Australian law) any previous Wills will no longer be valid.

Simply put, marriage, same-sex or otherwise, revokes Wills.

There are some exceptions, depending on the state or territory, such as whether the Will was made in anticipation of marriage and the allocation of gifts, but essentially the message is clear.

Married same-sex couples need to update their Wills and Estate Planning documentation to ensure they have a legal and valid Will.

Without doing this, a deceased individual is at risk of being Intestate.

This means there is no formal evidence of who a person wanted as beneficiaries or Executor.

In this case the estate is distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Although your spouse and family will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the ‘wrong hands’ or being allocated in a way you never expected or wanted.

Marriage can also impact appointment of Powers of Attorney and the allocation of assets such as superannuation and associated life insurance that don’t form part of your estate.

What to Consider

There are some key things you should consider when succession planning after marriage.

  • Acknowledging and making provisions for your new spouse
  • Appointment of Powers of Attorney
  • Guardianship and provisions for any dependents
  • Changes to beneficiaries
  • Exclusions or inclusions that need to be made
  • Changes in any assets and their value
  • Testamentary Trust changes or formation of a family trust
  • Whether you may need a Binding Death Benefit Nomination to secure your wishes when it comes to superannuation and associated life insurance.

Having an up-to-date Will and Estate Plan can minimise heartache and confusion for loved ones, as well as potential conflict, at a time they are grieving.

The good news is that it’s relatively simple to update your Will and Estate Plan.

What next?

You should seek advice from a suitably qualified legal professional, such as Gill & Lane, who can give you advice on your specific circumstances and can assist you in your Will and estate planning.