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The Law and You: Same sex marriage and Wills

Watts McCray Lawyers

It was a big day in Australia on 9 December 2017 when same sex marriage was legalised and the Marriage Act 1961 amended to reflect this momentous decision.

While the change means that a marriage between same sex couples has the same legal validity and recognition as any other marriage, it’s important to understand any legal consequences in areas such as family law, Wills and deceased estates.

Wills can be tricky to navigate and it’s important to get expert legal advice when drafting your Will. Many couples think ordering a Will kit online, or buying one in a local store, is sufficient to guide them. This isn’t the case. Indeed, writing up your own Will without professional guidance can leave you, your partner and family vulnerable.

This column focuses on Wills and same sex couples and the effect of a marriage.

We’re now married as a same sex couple. Do we need to make a Will?

It’s important that you each make a new Will as soon as possible. A Will has many benefits. It means that you, rather than the authority in the state or territory in which you live, decide who gets your property when you die. Wills can also distribute your property, name an executor, name guardians for children, forgive debts and more.

We each already had a Will before marrying as a same sex couple. Do we need to update them?  

You may need to update your existing Will. In the ACT, marriage can revoke parts of an existing Will or all of it, so it’s important to get expert advice. This is the case unless the Will was made in contemplation of marrying the person that you do then marry.

We got married overseas. What are the implications for our Wills?

If you were married overseas under the marriage laws of another country, your marriage is now recognised under Australian law. If you and your spouse made a Will before the new law came into effect, there’s a chance that the Will be affected. It could be partially revoked or invalid. If your Will was made before 9 December 2017, it may therefore need to be updated.

What is a binding death nomination for superannuation? Do we need one?

You need one for any superannuation fund in which you hold an interest. You must advise the Trustee of your super fund who you nominate as your beneficiary for your interest in the fund. If you’re married and one of you dies without a valid binding death nomination in place, complications can arise for the surviving spouse.

If no one has been nominated, then the Trustee makes a decision about who should receive any benefits. Completing a binding death nomination with the Trustee of the fund provides certainty. You’d be wise to renew this part of your financial affairs.

This column was prepared by Debra Parker, an Accredited Specialist in Family Law with Watts McCray Lawyers Canberra. If you have any questions about Wills, call Watts McCray to speak to one of our team of experienced lawyers.

Debra Parker

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. We have the largest number of accredited family law specialists in Australia and are backed by years of experience. Our lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. We can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. We can also help with your estate planning and wills. Call us on (02) 6257 6347 for more information and for tailored services to meet your specific legal needs. More about the Author

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