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Szabo & Associates News & Updates

The latest News & Updates from Szabo & Associates
5 minutes reading time (982 words)

Same-Sex Marriage and the Implications for their Wills and Estate Planning

In a previous blog, Thinking of Marrying Abroad? How to Ensure Your Marriage is Recognised in Australia, we outlined certain types of marriage that were not recognised as valid in Australia including same-sex marriage, even though it was anticipated that change was likely. 

 

At that time this also meant that such couples could not divorce in Australia either as the court could not recognise that a valid marriage existed.  This situation has, of course, changed, not just for those who celebrated their same-sex marriage overseas but also those couples now marrying in Australia.  Whilst that is now clear, the implications for estate planning need to be borne in mind as being in a legal marriage, as opposed to a de facto relationship, can be different.

A recent ABC news article advised that same-sex couples who married overseas may find their wills invalid.  The article suggested that “the effect of legal recognition from December 9, 2017 could be to nullify whatever wills those couples drew up beforehand.”  As such, this could “provoke unforeseen and costly future legal contests between spouses and other relatives - and a yawning gap between how a person wants their estate to be shared, and how it is treated under state succession law.”  One commentator suggested that it was “vital that the Federal Government provide information to same-sex partners about how being able to marry could affect their rights, including areas like wills, immigration and emergency decision-making.  In particular, if it is the case that wills and succession for same-sex couples married overseas could be affected by changes to Australian law, it is vital that these couples are aware of these changes.”

Revocation of a Will by Marriage

In our blog, Same-Sex Marriage - Impact on Wills and Inheritance Planning, we referenced an article from The Australian which pointed out that “where one member of a same-sex couple dies without a Will, the remaining partner has no automatic rights and may have to go to court to prove they have been in a long-term and committed relationship.”  Once the new legislation comes into force and same-sex couples are able to marry, their inheritance rights as a married couple will be the same as those already enjoyed by heterosexual married couples.  However, those same-sex couples that “do choose to marry will need to be aware that any Wills written before the marriage took place will be revoked by the marriage.”

As outlined, the reason for this concern over the validity of a Will is because, in all Australian states and territories, marriage revokes a Will that was made prior to the marriage.  The only exception to this rule is if the Will is made in contemplation of marriage which essentially means a specifically drafted clause in the Will.  The Will needs to be quite specific on this point.

Divorce and Separation

Our further blog, Legislative Changes Mean Same Sex Couple Can Now Divorce, outlined a situation where a same-sex couple had been married in Europe, now resident in Australia, but were unable to divorce prior to the recent legislative changes recognising same-sex marriage.  This was because the law did not recognise the marriage.  That situation has now changed. In NSW and most Australian states, divorce does not automatically revoke a Will.  However, in NSW, unless a contrary intention is expressed in the Will, on divorce the following will be revoked:

·        a gift to a former spouse: the effect is that the gift will pass as if the former spouse had predeceased the testator (will-maker);

·        an appointment of the former spouse as an executor, trustee, or guardian; and

·        a grant made by the Will of a power of appointment exercisable by, or in favour of, the former spouse.

Separation, on the other hand, does not affect a Will. If the Will is not updated on separation and the Will-maker dies, the existing Will remains valid.  This may include the appointment of their spouse as executor and a proportion of the estate granted to them.  It is, therefore, crucial to ensure that all estate and succession planning documents are updated to reflect any changes in circumstances as well as your intentions.

Other considerations

Whilst it is normally the case that marriage will not affect a nomination for superannuation purposes, if you have not made such a nomination, marriage is an appropriate time to do so.

Other documents you may also need to consider reviewing include Enduring Powers of Attorney and the succession plans for any company or trust structures.

What does it mean?

Same-sex marriages are now recognised in Australia.  Same-sex couples who married overseas in accordance with the marriage laws of those countries will now have their marriages recognised under Australian law.  If you or your spouse made a Will before the new Australian laws came into effect, it is possible those Wills are now invalid and may need to be revised to ensure they recognise their spouses and ensure the wishes of all parties are clearly expressed.

All couples, whether same-sex or heterosexual, are advised to seek professional legal advice about renewing their Wills and other documents after they marry and again should their relationship come to an end.

Contact our Wills and Estates Solicitors in Surry Hills, Sydney, New South Wales

Szabo & Associates, Solicitors, is a small and dynamic firm with extensive experience and expertise in providing legal services to the Sydney area and greater New South Wales.  We can offer expert advice on a wide range of legal matters including making, updating or contesting a Will and preparing a Power of Attorney.  If you have been living in a same-sex relationship with your partner but feel you have been unfairly treated in your partner's Will, or you need advice on drawing up a Will or any related matter, please call George Szabo on (02) 9281-5088 or fill in our online contact form.

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