Same sex marriage and wills
Posted on March 27, 2018
With the recent legalisation of same sex marriage in Australia it is imperative for those in same sex relationships, who are intent on marrying, to review their Wills and estate planning generally.
Section 20 of the South Australian Wills Act 1936 provides that a person’s Will is automatically revoked upon marriage, unless that Will is expressed to have been made ‘in contemplation of’ marriage. As same sex marriage had not been foreseeable until recently, it is unlikely that same sex couples included such a provision in their Wills.
As a result of these legal reforms, it means that any same sex marriage subsequently carried out will have the effect of invalidating existing Wills.
Another important factor to consider is where same sex couples have married overseas. As these marriages will now be recognised and validated by Australian legislation, it means that any Wills previously put in place could automatically be revoked.
A person who dies without a valid Will (known as ‘intestacy’) will have their estate distributed in accordance with a formula prescribed by the South Australian Administrative and Probate Act 1919. This may contradict the way in which same sex couples had intended to dispose of their estate assets.
The amendments to the South Australian Marriage Act 1961 are an appropriate reminder to same sex couples to review and update their Wills. In conjunction with Wills, and of equal importance, are nominations regarding payment of superannuation death benefits and life insurance policies.
Please contact Lynch Meyer Lawyers if you would like more information or to discuss your estate planning needs.