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What impact does the new marriage law have on wills?

same sex marriage effect on wills and estate

On 7 December 2017, an applause erupted in the House of Representatives, signalling that Australia has finally caught up to the world in marriage equality.

This is no doubt a fantastic result, and something long overdue. Whilst records of marriages are set to spike in the wake of the bill passing, what does this mean for same sex couples from an estate planning perspective?

Time to update your will?

In New South Wales, section 12 of the Succession Act 2006 provides that a person’s will is automatically revoked upon their marriage, unless of course, there is an express provision in their will made in contemplation of marriage. Given marriage equality has passed quite recently, it is unlikely that such a provision would be included in many same sex couple’s wills.

If you plan on getting married, you might want to think about updating your will.

Overseas marriages

If you are one of the same sex couples who married overseas, this may mean your existing will may be revoked. If you fall into this category, you should seek professional advice on updating your will.

What if there’s no will or an invalid will?

A person who dies without a will or an invalid will dies ‘intestate’ which means that they will have their assets distributed in accordance with a set formula set out in the Succession Act 2006 , which means that their assets may be distributed against their wishes or intentions.

A will goes a long way to ensuring that your testamentary wishes will be honoured after your death.

Facing the death of a partner is never easy. It is one of the most stressful times in a person’s life, but with a will you and your loved ones will have the security in knowing that your wishes will be honoured in the way you intended.

Get professional advice

You should be aware that divorce does not automatically revoke the entirety of your will. Therefore, all couples are advised to seek professional legal advice after they marry and again should your relationship come to an end.

For further information on preparing or drafting your estate planning documents, please contact our team at Tiyce & Lawyers.

ABOUT THE AUTHOR

Anthony Saba is a Solicitor at Tiyce & Lawyers. Contact Anthony at anthony@tiyce.com.au

 

 

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