Wills and Same Sex Couples
25 Feb 2021
Writing a will is not at the top of everyone’s to-do list – but it’s usually high up there. In our research, we’ve found that many Australians don’t have a will because they just haven’t gotten around to it. If everyone knew how important it was, almost all of us would have one.
A will is the only legally valid document that is accepted by law as an individual’s final wishes. And even though we don’t like thinking about it, it’s very important to make sure everyone knows your wishes after you die.
The importance of a will is no less important for same sex couples but there are specific points you and your partner should consider.
Intestacy and unmarried same sex couples
‘Intestate’ is a word used to describe when someone dies without a valid will. If you die intestate, your ‘estate’ will be subject to intestacy laws. The ‘estate’ in wills is what we call all property and possessions that you own by yourself or with someone else. Everyone is different, so intestacy laws aren’t perfect – and they might not treat your estate exactly as you wish after you die.
If you are in a de facto relationship and die intestate, in most cases your partner will have a right to be given all or part of your estate, as long as you don’t have children. But there is a chance that your de facto partner will be asked to prove the relationship existed and met some key criteria about de facto relationships. This can be a difficult and stressful thing to do, and makes it all the more important to have a will that supports them.
Wills and marriage for same sex couples
But what if you have already written a will? And what if you’re a married same-sex couple, instead of de facto? Depending on the order that those events took place, you might still need to review your will to make sure it is still valid.
Typically, marriage ‘revokes’ a will – meaning that will is cancelled. And importantly, divorce does mostly the same thing! In particular, divorce makes all the parts of your will that talk about your former married partner invalid – meaning those parts are effectively cancelled. It’s important to review your will regularly. Reviewing your will is important because it might not be ‘valid’ anymore – and if that’s the case it won’t count when you die.
If your will has been revoked by marriage or divorce, it would be better to write a new will rather than updating or amending an existing will. The process of fixing up an old will is pretty complicated, and it’s often much easier to start fresh.
Have the conversation about creating your will
Writing a will is not always the first thing you think about when getting married. It also isn’t easy to talk about doing. But having the conversation about making a will is important because it helps make sure your partner has what they need if you pass away unexpectedly.
To record your wishes in a will you can create your own will online. Our Online Will is a secure, guided experience. It’s simple and easy to do and takes as little as 30 minutes to complete.
You can also book a will consultation with a professional will writer here at State Trustees. In-person, or via a video call, a will consultation is a great way to get support in making your own legally valid will. For any other questions or enquiries, don’t hesitate to call us on 1300 138 672.
Consider the need for a power of attorney
When you make your will, you can also consider preparing a power of attorney. An enduring power of attorney allows you to appoint another person to make decisions for you when you are no longer able to make decisions yourself. This can be a trusted relative, a friend or an organisation such as State Trustees. It is important to have made your wishes clear in this regard, just in case.
You can prepare an enduring power of attorney when you prepare your will. If you’re creating your will with the assistance of a will writer you can request that your enduring power of attorney document be prepared at the same time.
Storing your will
It is important that you advise someone close to you where you’ve stored your will. If you are in Victoria, you should consider storing your will at the Victorian Will and Powers of Attorney Registry.
Keeping your will up to date
When significant changes occur in your life, be sure to review your will. If you have purchased a new asset, moved to a new city, overseas, entered into a domestic relationship, plan to have or adopted children, be sure to review your will. Doing so, will help ensure that your will represents your most recent and valued wishes, as the circumstances in your life change.
When you rewrite your will, your latest will, will only revoke a former will when the new will states so. This can be in the form of a statement at the beginning of the will revoking any past wills.
In closing, it doesn’t matter how straightforward you believe your circumstances are. A will is the only way to ensure that your final wishes have been made clear. State Trustees is available to assist you in preparing your will. Read more about State Trustees will options here or phone us on 1300 138 672.
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