Same-Sex Marriages And Estate Planning

By Farah Nathar, Lawyer, MST Lawyers

On 8 December 2017, Australia celebrated as same-sex marriage officially became law. On the following day, the laws took effect. But what does this mean for estate planning?

For those same-sex couples who were previously married overseas, on 9 December 2017, their marriage became legally valid in Australia. If the couple had executed Wills before the new legalisation of same-sex marriages, it is possible that their Wills have now become invalidated. This is because, in short, section 13 of the Wills Act 1992 (Vic) states that marriage revokes a Will unless the Will was made “in contemplation of marriage” (an unlikely scenario – unless the testator anticipated a change in public policy when the Wills were prepared). As the new marriage laws do not address this issue and there have not yet been any cases before the Courts to determine the matter, the situation regarding the possible revocation of the Will remains unclear.

In these circumstances, it is a good idea for same-sex couples to review their estate planning and prepare new Wills.

Similarly, for those same-sex de facto couples who had prepared Wills previously and have married since 9 December 2017, their Wills would be revoked by the marriage.

In the absence of a valid Will, the laws of intestacy apply- which often do not provide a desirable outcome for the distribution of your assets to loved ones upon your death.

In summary, if you are a same-sex couple and have recently married or are contemplating marriage, it would be prudent to review your estate planning, to ensure that your wishes are carried out and your loved ones looked after upon your death.

If you have any questions about your Will or any Estate Planning matter, contact our Wills & Estates team by email or by telephone +61 3 8540 0200.