Same-sex marriage – How does it affect your estate planning?

The much anticipated Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) commenced in Australia on 9 December 2017.

Same-sex couples are now able to be married and it is important that they, as well as their advisors, understand how marriage can impact their Wills and estates.

Subject to some limited exceptions, getting married will revoke all Wills, codicils and enduring powers of attorney that were signed before the date of marriage, unless those documents were made in contemplation of the marriage taking place and the contemplation is written into the document.

It is highly unlikely that Wills and enduring powers of attorney prepared for people in a same-sex relationship were made in contemplation of marriage. Therefore, any same-sex couple who are planning on getting married should contact a Wills and estate lawyer to get their Wills and enduring powers of attorney updated to ensure they remain valid after the marriage.

But a very important issue to consider if you are, or have been, in a same-sex relationship is whether you are in fact already married.

If you are, or were, in a same-sex relationship and got married overseas in a place where same-sex marriage is legal (such as Canada), then your marriage is now recognised as being legal in Australia.

This means that your Will and/or enduring power of attorney may already have been revoked if you got married overseas after you did your Will and/or enduring power of attorney.

Furthermore, if you have since separated from your spouse and did not seek a divorce from the country in which you got married, you are still technically married. This means that your ex-partner (to whom you still may be married): may be entitled to a share of your estate; may be entitled to have control of your estate; may be entitled to claim or receive your superannuation death benefit; or may be entitled to challenge your Will

Whether you have done a Will that may now be revoked or never done a Will, you must ensure that you have a valid Will in place that reflects your current wishes.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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