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Till death do us part - Estate Planning for Same-sex Marriage

Rohan Harris

The recent legalisation of same-sex marriage in Australia is certainly a cause for celebration, as are the weddings now following.

Amidst the celebrations, we should also spare a thought for the estate planning ramifications of entering into a legal marriage, as the impact is different to that of being in a de facto relationship.

When a person enters into a marriage in Australia, provisions of the succession legislation in all States and Territories cause a Will made by that person prior to marriage to be revoked. The only exception to this rule is if the Will made prior to marriage is made ‘in contemplation of marriage’ (which generally requires a specifically drafted clause in the Will).

If your Will is not made in contemplation of marriage, and a new Will is not prepared following your marriage, then should you pass away your Will is treated as being invalid and your estate will instead be administered in accordance with the laws of intestacy, which dictate how your estate will be distributed, without reference to your wishes.

Accordingly, if you have recently married or plan to get married in the near future, congratulations, and please give some thought to your own estate planning – this may require preparing a new will, or if you have already started the process, ensuring that it is appropriately drafted for your circumstances.

Other documents you may also need to review include Enduring Powers of Attorney, superannuation death benefit nominations and the succession of businesses, companies and/or trust structures.

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