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What does the yes vote for same-sex marriage mean for my Will?

By MV Lawyers 15 January 2018 0

Photo: iStock

On 15 November 2017, 61.6 percent of 12 million voters made Australian history by voting ‘YES’ to allow for same-sex couples to legally wed. Such a vote reflects the view that the majority of Australians supported the change to the Marriage Act under the Constitution to legalise same-sex marriage.

The changes to the Marriage Act came into effect on 9 December 2017. However, many same-sex couples may not realise that their impending marriage may inadvertently revoke their existing Will. So what do the changes to Australian marriage laws mean for the Wills of same-sex couples who are planning on getting married?

Typically when we enter a new relationship, we update our Facebook relationship status, and the same approach ought to be taken when considering our Wills.

In the ACT, if you already a have a valid Will, once you marry, or enter into a civil union/partnership, your Will typically becomes invalid from the date of your 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. If you are unsure about the status of your Will, you should get a lawyer to review it.

What if you and your partner fail to make new Wills after marriage, and one of you passes away?

Depending on the situation and the wording of your Will, without an updated Will, the reality is that your assets may not go to who you intended. While a portion of your estate will be given to your new spouse under the law, factors such as dependents from previous relationships or specific gifts you want to give, make it obvious why you need to cement your testamentary intentions in a Will.

If you pass away without making an updated Will, a Court will be responsible for determining who receives your assets. As stated by the ACT Law Society: “dying without a [valid] Will means your property is divided according to a seldom-appropriate, strict legislative formula known as ‘intestacy’ – you have no say in this”. To add to the inconvenience of following this formula, its application varies depending on your state of affairs instead of your intentions. This can result in bitter tensions between family members and expensive legal fees.

In order to avoid such conflict and hardship due to the unfortunate loss of a spouse, it is essential that you update your Will prior to, or following marriage.

Do you have a Will? Planning to marry soon? Give the team at Meyer Vandenberg Lawyers a call today to get your Will in order.

Just call Michelle Gold or Eleanor Heffernan on (02) 6279 4444 or email estates@mvlawyers.com.au

Michelle Gold is a Senior Associate in Wills, Estate Planning and Estate Litigation and Eleanor Heffernan is the Senior Lawyer in Wills, Estate Planning and Probate and Administration of Deceased Estates at Meyer Vandenberg Lawyers.

Michelle and Eleanor are both members of the Elder Law Committee and Estate Planning Group of the ACT Law Society.


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