Making a Will in a same sex marriage

The effect marriage will have on your will

In early December 2017, the Australian Parliament passed legislation which amends the Marriage Act 1961 (Cth) allowing same-sex couples to legally marry under Australian Law.

Prior to this Act of Parliament, people who were in same-sex relationships did not have the right to marry and did not have equal rights under the law.

The legalising of same-sex marriages

Not only means that same-sex couples can now legally marry under Australian Law, but also has significant consequences for drafting and contesting wills.

The area of Wills & Estates is an area of law where the rights of same-sex couples were significantly affected by being unable to marry.

As same-sex couples could not legally marry, they did not have the same rights afforded to married couples.

Same-sex couples could only ever be considered “de-facto” partners.

In a previous article, we discussed a case Heckenberg Lawyers acted on in which the deceased died intestate, which means he left no will.

The deceased was in a same-sex relationship at the time of his death.

As the deceased died intestate, the deceased’s assets are divided according to a statutory formula.

In this case, the deceased had no children.

The deceased’s brother argued that the entire estate should go to him, as the deceased was not married and had no children.

Our client, the deceased’s partner had to prove to the Court that he had been in a de-facto relationship with the deceased for a continuous period of two years at the date of death.

Heckenberg Lawyers were able to obtain a successful outcome for our client and the Court recognised that the deceased and our client were in a de-facto relationship.

Same-Sex Marriage And Wills

In the above case, if the deceased and his partner were legally able to marry, the deceased’s entire estate would have gone to his spouse.

The new amendment to the Marriage Act means that if you are married and die without leaving a will (intestate), your assets will be allocated to your spouse, if you die without leaving children.

Updating your will regularly is very important.

If you are in a same-sex relationship and marry, you should update your will to reflect this change in your life circumstances.

Furthermore, if you are in a same-sex relationship and you wish to leave assets to your partner you should also update your will to record your circumstances to ensure that your testamentary wishes can be carried out.

Heckenberg Lawyers also recommends updating your will when other significant life changes occur including if you have children, start new employment, divorce, start a new job, death of a spouse, acquire new assets or retire.

Need help?

If you need advice on changing the terms of a Will, drafting a Deed of Variation or Contesting a Will you need to seek legal advice from an Expert Wills & Estates Lawyer. You can speak to the expert lawyers at Heckenberg Lawyers on how to successfully change the terms of a Will or Contest a Will.

We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.

Contact us here (obligation-free).

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Jane Araneda
Jane Araneda
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Thanks to Graeme, Blaise and their team at Heckenberg Lawyers for helping us finalise our matter in a timely manner. They were always very helpful and professional. They took care of everything very well, which meant that there was no added stress on me and my family. Jane A.
Kim Pink
Kim Pink
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I found Heckenberg Lawyers to be very professional and knowledgeable. Graeme took the time and explained the entire process to me. He was never pushy nor was he just after "his cut" as so many other practices are. He was at all times looking out for the best interest of the estate and not wanting it to be eaten. I found his staff to be extremely thorough and attentive. I would have no hesitations to recommend this practice if you want the best outcome possible.
Donna Hodges
Donna Hodges
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Blaise was extremely professional in assisting with all matters to do with my fathers estate and probate. She made an extremely complex process very easy to understand and instilled great confidence at a difficult personal time for our family.
Sonja Psaroudis
Sonja Psaroudis
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If you need legal representation in a matter to do with Wills & Estate law I highly recommend Graeme, Blaise and the whole team at Heckenberg. Their knowledge and expertise in this area of the law was a huge comfort at a very difficult time, saving all parties involved time and money in the long run. Thanks again .!
Olma Mignacca
Olma Mignacca
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Graeme is trustworthy and thorough. His charges were reasonable and easily understood. The team was considerate and helpful.
Samuel Burns
Samuel Burns
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As the executor of an estate, I engaged Graeme and his team to handle a family provision claim and probate matter. I found Graeme to be professional and knowledgeable. Throughout the entire process, Graeme treated all parties involved with respect. He was always willing to take my concerns onboard and never pushy. Highly recommended.
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