It’s a "Yes"

The official results are in.  The majority of Australian voters said “Yes” to marriage equality and have given the Australian government the green light to press ahead with the amendment of marriage laws which will permit same-sex marriages to take place.  It’s anticipated that the new law will take effect as early as Christmas and will give same-sex couples the freedom to choose between a de facto relationship or to marry.

What does the yes vote mean for estate planning and those in same-sex relationships?

For same-sex couples who choose to marry, it means they will no longer have to traverse the myriad of complex Federal and State laws which define and often provide different definitions of a “de facto relationship”.  For example, to be considered a de facto spouse for the purposes of receiving a superannuation death benefit there is no minimum period a couple must be living together. However to be entitled to an estate in New South Wales where there is no will, a person must have been living with the deceased for a continuous period of 2 years.

It also means not having to prove the relationship exists in the first place by providing evidence of the relationship and in some cases, having a Court or Tribunal examine the intimate details of the relationship to determine if it was indeed a de facto relationship.

A marriage certificate will be proof enough of the existence of the relationship.

It’s important to recognise that many of the issues raised above, and faced by de facto couples, could be addressed by having a valid will and estate plan in place.  For those de facto couples who have a will and estate plan in place and decide to marry, it will be necessary to revisit documents such as wills, superannuation binding death benefit nominations, powers of attorney and appointments of enduring guardian/medical powers of attorney as the validity of these documents may be affected by marriage.

In the case of wills, it’s important to note that marriage will revoke a will made prior to the marriage and it will be necessary to make a new will after the marriage takes place.  It will also be possible to make wills in contemplation of marriage which will enable the will to continue to be valid after the marriage takes place.

Where there is no will, the surviving spouse (subject to certain provisions) will become solely entitled to the estate of the deceased spouse regardless of the length of the relationship.

Marriage equality for everyone will soon be a reality in Australia.  Couples, regardless of sex, will have the freedom to choose the type of relationship they would like to have.  In Australia, we also have the freedom to choose how our assets are to be distributed on death and who will manage our financial and health decisions in the event of incapacity.  The exercising of these important choices can be efficiently and effectively achieved by wills, powers of attorney and appointments of enduring guardian/medical powers of attorney. 

Exercise your freedom to choose, don’t rely on statutory provisions and ensure your will and estate plans are up to date and valid.

Marie Brownell

Head of Private Client Services

Accredited Specialist (Wills and Estates)

[email protected]