Same sex marriage and the attendant implications for estate planning

By Anna Hacker, Accredited Specialist – Wills & Estates, National Manager, Estate Planning, Australian Unity Trustees Legal Services.
 

The recent passing of the Same Sex Marriage Bill by Parliament is cause for celebration for those in a same sex relationship, but they should also be aware of the legal implications of marriage, and plan for their family’s future accordingly.

Before the marriage

Any couple in any type of domestic relationship, whether it be a de facto relationship or a marriage, regardless of gender, should have an up-to-date Will and estate plan that includes a Power of Attorney. When the status of that relationship changes, so too should the documentation.

Sadly, in cases of de facto relationships where one partner dies, I have seen cases where family members have denied that a relationship between the two people existed, and claimed that the two people were simply friends or flatmates.

This can create situations where friends of the couple are asked to sign affidavits stating they believe the couple were de facto, or the surviving member of the relationship being required to make public details about the relationship that are very private.
Not only are these details discussed in a court room before a judge and other involved parties, but cases are usually published so that other lawyers can study them. It means that private details of people’s lives can become very public.

This can be very embarrassing, and could easily be avoided by having an estate plan. While legal professionals would always recommend a formal Will and enduring power of attorney be prepared to ensure your wishes are followed, before marriage, this can also confirm the existence of a relationship so it is arguably even more important at that stage in a relationship.

Equality from a legal standpoint, too

From a legal point of view, marriage ensures more rights to a couple when it comes to death or medical decisions, when compared to de facto relationships. For people in same sex relationships, this will help them to not only confirm their relationship formally in a way they couldn’t do before (save for the recognition of civil relationships through state based registers), but clarify the legal framework also.

It means we will no longer see situations where those in a same sex relationship are treated unfairly if one partner dies or is critically ill or injured.

For instance, in the past, a person in a same sex de facto relationship may not be considered next of kin, and not included on the death certificate or allowed to make medical decisions on behalf of their partner.

Marriage automatically invokes these rights and protections under the law. It does not, however, mean that a formal Will or enduring power of attorney should be forgotten about. While the status of the relationship is confirmed, the law only provides a one size fits all approach to how estates are distributed without a Will and this might not be appropriate for everyone. It is still critical that the formal documentation is in place.

A Will and estate plan help ensure assets are distributed according to the deceased’s wishes

Same sex married couples should create a Will and estate plan to ensure their final wishes are fully understood. These documents outline how the one you love is to be looked after if something should happen to you, and defines who can make decisions about your medical care if needed.

As noted above, intestacy laws, which cover the way in which an estate is distributed if there is no Will, may not produce the outcome that is wanted so it is vital to consider what you want to put in place and how that can be achieved.

They also cover the care and financial implications for any children, which is important regardless of the legal status of the relationship.

Getting married can result in a Will being revoked

If a couple had prepared their estate planning documents while they were in a de facto relationship, it is important they understand that marriage can revoke their Wills (unless they clearly state that the Wills were made in contemplation of marriage).

This could mean they would die intestate and the assets would therefore be distributed by the courts, rather than in accordance with the deceased’s wishes.

Any time there is a change in a relationship, whether it be the start, confirmation or conclusion of one, all estate planning documentation should be reviewed and you should check to ensure that what is in place accords with your wishes and can continue to be fulfilled.

Caution: Marriages conducted overseas and attendant Wills

An interesting complexity has arisen regarding marriages which have been previously conducted overseas and which were automatically made valid in Australia with the passing of the legislation. It is unclear (and legal experts are not in agreement on its effect) whether this will have also automatically revoked any Wills that those couples had previously had prepared.

It is unlikely that anyone wants to be the test case to confirm which approach will be favoured so rather than just wait, the prudent option for these couples is to re-write their Wills.

Conclusion

Ultimately, estate planning is important at any stage in a person’s adult life. A critical time to consider updating or confirming a Will, however, is when a marriage takes place as this is the only time in which a Will can be revoked without you being aware that that is going to occur.

Professional advice is important as it helps makes sure that the people who you want to have control of your estate will, and that who you want to benefit from your estate shall.

Disclaimer: This article is not legal or personal financial advice and should not be relied on as such. Any advice in this document is general advice only and does not take into account the objectives, financial situation or needs of any particular person. You should obtain financial advice relevant to your circumstances before making investment decisions. Where a particular financial product is mentioned you should consider the Product Disclosure Statement before making any decisions in relation to the product. Whilst every reasonable care has been taken in distributing this article, Australian Unity Personal Financial Services Ltd does not guarantee the accuracy or completeness of the information contained within it. Any views expressed are those of the author(s) and do not represent the views of Australian Unity Personal Financial Services Ltd. Australian Unity Personal Financial Services Ltd does not guarantee any particular outcome or future performance. Taxation Information in this document should not be relied upon without seeking specialist advice from a tax professional. Australian Unity Personal Financial Services Ltd ABN 26 098 725 145, AFSL & Australian Credit Licence No. 234459, 114 Albert Road, South Melbourne, VIC 3205. This document produced in June 2018. © Copyright 2018