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Same Sex Marriage Reforms and your Will

By Rebecca Tetlow 14 December 2017 0
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You might have to review your Will before you and your partner decide to tie the knot.

The recent amendments to the Marriage Act, that came into effect as of 9 December 2017, may have inadvertently revoked your Will.

For couples in the ACT, getting married automatically revokes any Will you have in place before marriage – unless your Will specifically states that it was made in contemplation of marriage. There are similar laws in other states and territories in Australia, although some of the details vary between jurisdictions.

If you and your partner are planning to marry now that the marriage laws have changed, you should dig out a copy of your existing Will to check whether it includes a clause stating it was made in contemplation of marriage. This is especially important if it’s been a while since you last updated your Will or if your Will refers to other forms of legal relationships (such as civil unions or civil partnerships) but not marriage.

If you’re not sure about the status of your current Will, then ask a lawyer for advice about whether your Will is still valid. This will depend on the actual wording used in your current Will and the circumstances in which you and your partner have married or plan to marry in the future.

If you and your partner married overseas, until recently that marriage was not recognised in Australia. As a result of the same sex marriage reforms, any same sex marriage validly entered into overseas is now recognised in Australia. This not only applies to couples who enjoyed a destination wedding in places like the USA or New Zealand, but also to marriages which took place under foreign law in Embassies or High Commissions in Australia (which was an option chosen by a number of Canberra couples). If your overseas marriage is now recognised as a marriage under Australian law, then you need to consider whether that legal change has affected the validity of your Will.

If you have previously made an Enduring Power of Attorney, you should also consider the impact of the marriage reforms on your Enduring Power of Attorney. In the ACT, marriage revokes an earlier Enduring Power of Attorney that nominates anyone other than your spouse to be your attorney. From March 2017, the Enduring Power of Attorney form specifically included a section regarding the contemplation of marriage, but Enduring Powers of Attorney made prior to then may not have considered future marriage.

If you and your partner are planning to marry in the future, and don’t currently have Wills or Enduring Powers of Attorney, then now is a great time to make them. You don’t have to wait until after the wedding to make a Will. Put estate planning on the pre-wedding to-do list and just make sure the Wills and Enduring Powers of Attorney are stated to be made in contemplation of your upcoming marriage.

Rebecca Tetlow is currently the Chair of the ACT Law Society’s Elder Law and Succession Law Committee and is a partner at DDCS Lawyers.


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