In December 2017 Australia joined the community of nations that recognise same-sex marriage. Over the last few decades there have been increasing legal protections of the rights of LGBTIQ Australians – through laws relating to equal treatment with respect to issues such as adoption, assisted reproductive therapies, inheritance and superannuation.

The right to marry means that same sex relationships had the same option available to other married couples to achieve legal recognition of the relationship. This has particular legal implications with respect to estate planning.

In estate planning terms, this means that if an LGBTIQ person wishes to claim on the estate of their deceased partner, they do not have to ‘prove’ the relationship was ‘real’ to authorities such as Trustees and Courts – being married, and having that marriage legally recognised, provides that proof.

It also means that in estate planning terms, the same issues need to be considered when couples marry – usually that means making sure the Wills of each of the partners is reviewed and drafted in such a way that it can do what the will maker intends.

In most States of Australia, for example, marriage generally revokes a Will (but the opposite is not true - divorce in most states does not). Even Wills that are drafted ‘in contemplation of marriage’ must be carefully written. And if there are children involved (jointly or from previous relationships) it can get even more complicated.

The recommendation for everyone in a relationship planning to marry is the same: get great advice and have your Wills professionally drafted to ensure that the people you love most in the world are looked after in case you can’t be there to do so yourself.

You can find out more about estate planning and wills generally, here on our website.  

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