The push for marriage equality has been an emotional one for many of the people, groups, couples and families involved in bringing this change into fruition.
Since January 2018, couples of the same gender have been legally able to marry – subject to the usual waiting period that applies after a party notifies Births, Deaths and Marriages of an intention to wed.
This is a time of celebration for many. Yet it’s as important as ever to consider the legal implications of entering into a marriage. Specifically, how will marriage impact your estate plan, and where will it leave your Will and Enduring Power of Attorney?
Marriage revokes a Will
In Australia, when you get married, a Will made prior to that marriage is revoked. This is the case even if you have left everything to your new spouse.
This problem can be overcome by making the Will ‘in contemplation of marriage’ to a named person, but given past uncertainty regarding marriage equality, many same sex couples may not have made their Wills in this manner.
Marriage will also revoke a Will if that marriage takes place overseas, provided the marriage is legal in Australia.
Unfortunately, there is a good deal of uncertainty as to whether the new legislation in recognising overseas same sex marriages revokes any Will made prior to 9 December 2017 (the date the legislation was passed by the Commonwealth Government) or the date of the actual overseas marriage. Because of the doubt surrounding this issue, we recommend you seek urgent advice from us as to the status of any Will you may have made, especially in cases where a Will was made following an overseas marriage.
Enduring Powers of Attorney
After marriage, in the ACT, your pre-existing Enduring Power of Attorney will be revoked for everyone but the person you are marrying. The laws in relation to the impact of marriage on an Enduring Power of Attorney do vary across Australia.
Making Wills after marriage
Regardless of gender, anyone who is newlywed should update their Will, to reflect their change in circumstance.
Curiously, divorce does not revoke an existing Will, but divorce may invalidate a gift to your former spouse – or it may effectively make your former Will inoperative.
We strongly recommend that once you separate from – and certainly when you divorce – a partner, you should make a new Will.
Summary: what’s important for you
Our suggestion to all our clients is this: if you are unsure, ask us! If you need advice or think your Will or Enduring Power of Attorney may be invalid, please get in contact by calling Brian Tetlow or Emma Bragg at our office pm (02) 6140 3263.
Really, our advice is the same as it has always been. After significant life events such as marriage or divorce, you need to ensure your estate plan is still as you wish it to be.