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The Legal Impact of "I Do" for Same-Sex Couples

By Equally Wed - Posted on Sunday, May 27, 2018

In most cases your marriage will revoke your Will, meaning that you would no longer have a valid Will in place once you are married. However, marriage does not revoke a Will when a specific clause is included in your Will, called a ‘contemplation of marriage’ clause.

While this clause is often included in the Wills of opposite-sex de-facto couples, it typically would not have been included in same-sex couples Wills, as until very recently there was no prospect of marriage. This means that you should check your Will to see if it includes a contemplation of marriage clause, and if not then you should re-do your Will. It is important to note that this clause should be specific to the marriage to your partner, and not general in nature.

You can re-do your Will prior to getting married and include the contemplation of marriage clause, as this will ensure that your marriage does not then revoke your Will.

WHAT IF I HAVE BEEN MARRIED OVERSEAS?

If you have been married overseas, your marriage is now recognised in Australia. Potentially this recognition of marriage has the same impact on your Will as a marriage in Australia - that is, to revoke your Will. While this question has not yet been resolved, it would be prudent for couples who have wed overseas to re-do their Wills to ensure that they remain valid.

DOES MARRIAGE IMPACT YOUR SUPERANNUATION ON DEATH?

Superannuation does not necessarily pass by your Will. You can direct your superannuation company to pay your benefits to a specific person or people on your death. This can either be through your Will, or outside of your Will, through a document called a Binding Death Benefit Nomination (BDBN). 

Without a BDBN, it is up to the superannuation company as to who receives your money. while your marriage does not impact who receives your superannuation directly there are only certain people your super can be paid to, and marriage very clearly includes your spouse in that group. When you re-do your Will you should also ensure that your BDBN is updated. Whether it is appropriate for it to go through your Will or outside of it depends on several factors, and you should discuss this with your lawyer.


Photographer: Carmen Hickey Photography

WHAT ABOUT CHALLENGES TO YOUR WILL?

Will challenge laws vary between different states, so it is important to talk with your lawyer about this if you have any concerns. However, as a general guide, marriage can make it harder for other family  members to challenge your Will, and can make it easier for your spouse to challenge in the event that you have excluded them from your Will.

HOW ARE YOUR OR YOUR SPOUSE’S CHILDREN AFFECTED?

If your spouse has children from a previous relationship, your marriage will classify those children as your step-children, and likewise if you have children from a previous relationship your spouse will be recognised as their step-parent. Potentially this may affect those children’s ability to claim on their new step-parent’s estate or superannuation.

Thankfully though, blended families are nothing new to estate planning lawyers and there are a variety of approaches that can be taken to accommodate all family members, depending on your situation. Much of what can be done comes down to how your assets are owned, so if you’re looking at purchasing a new asset together - especially real estate - it is worth a call to a lawyer to get some advice on the best way to do this.

‘I DO’

Most importantly, clear and timely communication with your partner, husband/wife (to be) about how you wish to manage your assets in case of separation or death is the best way forward and can make a sound foundation for a happy future together.

Speaking with your children and family about your intentions for your Will before your death goes a long way to helping prevent family conflicts later. Happy planning, and all the best for your relationship and marriage!

By Jessica Amberley, Principal at Legal Essentials & Natalie Fielding, Principal and Accredited Specialist in Family Law at Lewis Holdway Lawyers

Read more stories like this in our Magazine which you can find in over 900 newsagents across Australia or buy online here.


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