What happened to my Will? The effect of new marriage equality laws

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Almost one year has passed since Australia voted “yes!” and saw the historic passing of the marriage equality laws on 9 December 2017. The long-awaited amendments to the Marriage Act 1961 now mean that a person’s sex or gender no longer affects their rights to marry under Australian law.

These amendments also act retrospectively, to ensure that same-sex marriages solemnised overseas are now recognised in Australia. This means that many people woke up married in Australia on 9 December 2017!

It is therefore important to be aware of the legal implications of marriage on wills and estates planning and seek legal advice in this area to see how these changes may affect you.

Marriage may revoke a Will

All Australian States and Territories contain provisions in their respective wills and succession legislation to revoke a Will made prior to marriage.[1]

Although inheritance laws do vary across states, the general rule is that Wills entered into in contemplation of marriage remain valid. However, given the previous uncertainty about the legal position of same-sex marriage in Australia, it is likely that many Wills of same-sex couples will not contain this provision.

If you are in a same-sex relationship and were deemed married (in Australia) on 9 December 2017, it is important to be aware that in most cases, the effect of the marriage will revoke your pre-existing Will. You should seek legal advice to ensure that your Estate is distributed in accordance with your wishes in the event of death.

Marriage may affect your Superannuation Binding Death Benefit Nomination

Marriage may also revoke a Binding Death Benefit Nomination.

This differs significantly from fund to fund and we recommend that you seek legal advice to ensure that your superannuation entitlements are divided on death in accordance with your wishes.

It is also important to be aware that separation in and of itself, does not affect a superannuation Binding Death Benefit Nomination. The law only recognises such changes on divorce. In Australia, separated parties are not eligible for divorce until they have been separated for 12 months.

This means that following your separation, your nominated binding death benefit should be changed to ensure your Binding Death Benefit Nomination is in favour of your chosen person, and not necessarily your separated spouse.

1. Wills Act 1997 (Vic) s13; Succession Act 2006 (NSW) s12; Succession Act 1981 (QLD) s14; Wills Act (NT) s14, Wills Act 1970 (WA) s14, Wills Act 1936 (SA) s20, Wills Act 2008 (TAS) s16, Wills Act 1968 (ACT) s20.

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