News & Insights

Same sex couples planning to marry and those who have tied the knot overseas are being urged to review their Wills, as recent changes to the Marriage Act could have the potential to revoke their Wills and scuttle their estate planning arrangements.

The situation is most critical to same sex couples who intend to marry soon, and those who have previously married overseas.

Marriage can have a significant impact on estate planning. The general principal is that marriage revokes a Will; if someone has made a Will and then marries, their Will is revoked by their marriage. The general rule can be overcome if the Will specifically states that their future marriage does not invalidate their existing Will.

Macpherson Kelley Associate Amelia Nowosilskyj said: “for those that are thinking of marrying, it’s critical they review their estate planning arrangements to make sure their special day does not lead to long standing estate planning arrangements being effectively torn up.” She said that for some couples, this may require a simple redraft of their Will, while for others, it may be a good opportunity to review their estate planning in its entirety.

For couple’s previously married overseas, the situation is more complicated.

It is estimated that, before same-sex marriage was legalised in Australia, thousands of Australian same sex couples married in countries where it was already legal, such as Canada, Britain and the USA. The previous Marriage Act did not recognise these same-sex unions solemnised overseas as valid under Australian law. The amendments to the Marriage Act have repealed this section of the act and apply retrospectively. The effect being that thousands of same-sex couples found themselves already married under Australian law as soon as the legislation was enacted.

Experts are divided on whether Wills made by couples who have been married overseas are now invalid because of the rule that marriage revokes a Will. Ms Nowosilskyj warned that the uncertainty could give disappointed beneficiaries an opportunity to mount a legal challenge against the Will of anyone affected by these circumstances after the Will maker dies.

She said: “We recommend that same-sex couples who married overseas seek legal advice about their estate planning, to remove any uncertainty as to the validity of their Wills and to ensure that their estates pass to their intended beneficiaries.”

There may also be complications for some of the thousands of Australian same-sex couples who were lawfully married overseas, if they have since split-up, even if the relationship ended more than a couple of years ago. Under the new Australian law, they are still married. This can cause estate planning and family law consequences. Being parties to a marriage, each spouse has the right to institute property and maintenance proceedings in the Family Law Courts. If either spouse has re-married before a Divorce order has been made, that subsequent marriage is likely to be void.

We recommend that same-sex couples who married overseas speak with us to ensure that their estate planning is in order, and that those who have since ended the relationship contact our Private Clients team to learn about their rights and risks in the family law jurisdiction.

This article was written by Brendan Herbert, Principal Lawyer,  James Dimond, Senior Associate and  Amelia Nowosilskyj, Associate – Private Clients.