Same-Sex marriage and wills

Posted on Mar 13, 2018 by Terry Morgan   |   Categories: Wills & Estates

Following the result of the historic same-sex marriage postal survey in November 2017, the Parliament of Australia passed legislation amending the interpretation of ‘marriage’ under section 5 of the Marriage Act 1961 to mean “the union of two people to the exclusion of all others, voluntarily entered into for life”. Prior to this amendment, same-sex couples in Australia did not have the right to marry, and therefore did not maintain equal rights under the law.

Although those in de facto relationships have been able to assert and realise some of the same rights as married couples under law, they are often required to expend substantial time and money to do so. Further, laws regarding de facto relationships vary between the Commonwealth and states, and from one right to another, creating ambiguity for those in de facto relationships in ascertaining the applicability of such rights.

Conversely, marriage allows couples to access a complete bundle of rights simply by providing their marriage certificate, and is based on their mutual promises to one another as opposed to proving that their relationship meets particular interdependency criteria. Moreover, unlike de facto partnerships, marriage is recognised both domestically and internationally. As such, de facto couples are not automatically afforded the same rights as married couples.

An area of law in which de facto couples have long faced uncertainty are Wills and Estates. The legalisation of same-sex marriage will have significant effect for the drafting and contesting of wills. In most states, unless specifically worded otherwise, a marriage automatically nullifies an existing will. However, this is not the case when entering a new de facto relationship. This means that if a person in a de facto relationship dies before creating a new will or dies intestate (i.e. without a will), the person’s assets will be distributed in a standard matter in accordance with statute, or in some circumstances, by a court (with the costs borne on the deceased’s estate).

However, under the recent amendments to the Marriage Act 1961, same-sex couples who decide to marry will be afforded the same rights at law. In other words, if one spouse in a same-sex marriage dies intestate, the deceased’s estate will be allocated to the spouse, if the deceased dies without having children.

It is important to update wills regularly, particularly when a change in your personal circumstances or wishes occurs. If you are in a same-sex relationship and decide to marry, it is imperative to update your will accordingly to reflect this change in your life circumstances. Moreover, if you are in a de facto relationship and wish to leave assets to your partner, you should update your will to demonstrate your circumstances in order to ensure that your testamentary wishes can be performed.