Same-Sex Couples Married Overseas now face Estate Planning Uncertainty

Same Sex Couples Married Overseas

Marriage Amendments (Definitions and Religious Freedoms) Act 2017 (Cth) made Australian history on December 9 2017 by legalising same-sex marriage.

However, there may have been an unintended consequence for same-sex couples who had married overseas (which, up until now, was not recognised in Australia as a valid marriage).

Since the Act was passed, many estate planning lawyers have questioned the impact of the legislation on Australian succession law – as marriage legally invalidates all previous Wills (unless made in contemplation of marriage).

The issue comes down to a determination as to the timing of when the marriage is deemed to have been legalised.

For example:

Peter and Alan married in America on 1 June 2016. Whilst same-sex marriage was legal in America at this time, it was not recognised in Australia.

In December 2016, Peter and Alan each prepared and signed Wills leaving 50% of their estate to each other and the remaining 50% to their respective families.

On 9 December 2017, same-sex marriage was legalised in Australia.

We now have 2 possible scenarios:

  1. Is it deemed that the date Peter and Alan actually married (1 June 2016) is the date their legal marriage began? This means that their subsequent Will signed in December 2016 is valid; or
  2. Is it deemed that the date on which same-sex marriage was legalised (9 December 2017) is the date that their legal marriage began? In this scenario, as the date of their legal marriage is after the date they signed their Wills, the legal recognition of their marriage actually invalidates their Wills.

As a court is yet to consider this issue, lawyers to date have been hesitant to comment as to the validity of Wills in these circumstances.

Until the issue is resolved, if you are part of a same-sex couple who married overseas prior to the legalisation of same-sex marriage in Australia, it is prudent to sign a new Will and Enduring Power of Attorney as soon as possible. Failure to update could mean that your are deemed to have died intestate (without a Will) and the state legislation will determine how your assets are to be distributed upon your death.

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