Same sex marriage - issues for estate planning

Wills and Estates: 23 March 2019

Although the recent same-sex marriage reform creates significant legal benefits for same-sex couples, those who were already married overseas or looking to get married in Australia should be aware of certain estate planning issues.

The recent legislative amendments mean same-sex couples who have married overseas in accordance with the marriage laws of those countries will now have their marriages recognised as valid under Australian Law from 9 December 2017.

In Victoria, section 13 of the Wills Act 1997 states that a marriage revokes all previous Wills, unless the Will is specifically made in contemplation of that marriage. In this instance, it is now unclear if the Wills of same-sex couples who were married overseas before the new legislation came into effect are still valid, or whether they have been revoked by the new legislation. If it is the case that such Wills are invalid, then failing to update your Will may mean that you die intestate (without a Will) and without an opportunity to direct how your estate is divided. Also, it often makes the administration of the estate more complex and expensive. Therefore, as with any marriage, a Will that was entered into, not in contemplation of a subsequent marriage should be updated.

It is also important for same-sex couples who are planning to marry in the near future to include an express clause which states that their Will is made in contemplation of marriage. This will prevent the Will being revoked upon the marriage.

In short, we recommend that any same-sex couples who are in either of these situations contact us as they may need to review their estate planning documents.