• Nicole Evans

Where there’s a will there’s a way: Marriage equality and estate planning for lesbian couples.

Now that we have marriage equality in Australia, there are some things that married same sex couples need to think about. No one likes to think about bad things happening, but unfortunately sometimes they do. Life happens!


If you were validly married overseas at any time your marriage will now be recognised in Australia. If you were married in Australia after the new laws came into effect, then there are legal consequences for you and your spouse in areas such as wills & estates.


Wills


If you had a will drawn up and signed before the new laws came into effect, this may mean that your will is now invalid.


In Australia, marriage invalidates or revokes the previous wills made by both spouses before the marriage, unless they were made in contemplation of marriage to that person. There are certain exceptions under s 12 of the Succession Act 2006, for example, a gift to the spouse will not be revoked, nor will an appointment of the spouse as an executor or trustee, however, other important clauses and provisions may unwittingly be invalidated.


If you fail to update your will after your marriage, or after the new laws came into effect on 9 December 2017, then either you or your spouse may die intestate, or partially intestate. This means that you effectively do not have a will, or that the will you have doesn’t deal with your whole estate, and your estate may be divided otherwise than in accordance with your wishes.

If someone dies without a will, then their spouse or de facto partner generally will be first in line to inherit their estate if they have been in a de facto partnership for over two years. If you have a marriage certificate, it is much easier to prove your relationship. A de facto partner may have difficulties establishing this and may have to provide the court with evidence of the relationship including copies of joint bank account statements, leases, mortgage documents, photos and other correspondence.


If you have not been in a de facto relationship for at least two years, or cannot establish the existence of your relationship, then the partner may not inherit the estate and may get passed over in favour of other family members, such as the person’s children, siblings or parents.

Additionally, if you do not leave a will validly appointing an executor (who will have the power to decide what to do with your remains), a person appointed by the Court (usually, the next of kin or a major beneficiary) will acquire that power. Having this set out in a valid will is often the preferred course and avoids the risk that someone you may not wish, will be responsible for the management of your estate and the disposal of your remains after your death.

If you are separated and your will is not updated before you have divorced, and you die, then you spouse may still inherit your estate and/or act as your Executor.


You should obtain legal advice as soon as possible upon separation.


Superannuation


Your superannuation does not automatically form part of your estate to be dealt with by the provisions of your will. You will usually need to make a binding death benefit nomination through your superannuation fund to effectively determine who will be the beneficiary of your superannuation after you die.


If you or your spouse dies without making a valid binding death benefit nomination for the superannuation fund, then the fund’s trustee will decide who should inherit the superannuation benefit.


Spouses are generally first in line. If you are married, then you provide the trustee of the fund with a copy of the marriage certificate. If you are not, then you may need to prove the existence of your relationship, which can be time consuming and costly. If your relationship is not registered anywhere, such as a state relationship register, this may also make it more difficult. This is the last thing you would want to be doing if your partner passed away.


Power of Attorney & Enduring Guardian


In Australia, spouses are regarded as next of kin and can usually make important decisions about their spouse’s medical care, unless the spouse has contradictory advanced care directives.

An advanced care directive is contained in an Enduring Power of Attorney and/or Enduring Guardian. These documents can detail who has the power to deal with your assets and make decisions on what medical treatment you receive. They are particularly important in the event you lose the capacity to make decisions about your financial affairs, healthcare, treatment and accommodation.


If you are not married and don’t have an Enduring Power of Attorney or Enduring Guardian, then someone you do not trust, or have not had contact with in a while (which could be a family member) may decide what life saving treatment you may or may not receive.


If you need advice on your estate planning needs, don’t hesitate to get in touch with Nicole Evans from Nicole Evans Lawyers on (02) 8379 1892 or nevans@nelawyers.com.au


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© 2019 by Lesbians & The Law