Same-sex Marriage And Your Will

By Alison Hiscocks – Hiscocks Lawyers

The amendments to the Marriage Act 1962 (Cth) legalising same-sex marriage came into effect on 9 December 2017. As a result of these amendments, the wording defining marriage was changed to “a union of two people”.

Also, from 9 December 2017 lawful same-sex marriages which have been celebrated overseas or in international diplomatic posts in Australia are recognised by Australian law.

The introduction of “same-sex marriage” can have significant impacts upon estate planning.

There are three main items which need to be considered. These are :-

  1. The possible revocation of an existing Will

Many people are unaware that a Will made before marriage is automatically revoked (that is, made invalid) upon marriage unless the will was made in contemplation of marriage.

  1. The possible revocation of a Binding Death Benefit Nomination

Superannuation will not automatically be included in a deceased person’s estate. The trustee of a superannuation fund is bound to distribute the benefits in accordance with the terms of the trust deed or, if one has been correctly executed and has not lapsed, in accordance with a Binding Death Benefit Nomination (BDBN).

However, because a BDBN can be considered as a testamentary document, many superannuation Trust Deeds contain a provision that marriage revokes a BDBN made before marriage.

Therefore, any BDBN made prior to 9 December 2017 should be checked to ensure that it has not been revoked.

  1. The possible revocation of an appointment of an attorney under an Enduring Power of Attorney

The Queensland Powers of Attorney Act provides that marriage revokes the appointment of an attorney unless it is the spouse who has been appointed. This means that if you have already signed an enduring power of attorney which appoints someone other than your spouse the enduring power of attorney must be re-executed following marriage.

If you or anyone you know has any questions or concerns about these matters please feel free to contact Alison Hiscocks at Hiscocks Lawyers.