Although no more special than heterosexual families, the same sex or ‘Rainbow’ family has its own intrinsic features and therefore need to be accounted for in their individual Wills and estate planning.

While there is literature both for and against same sex couples raising children, the fact of the matter is that couples in same sex relationships and marriages can legally adopt and foster children in Australia. Therefore, same sex couples with dependent children need to make the proper arrangements so they are looked after should anything happen to the couple.

When it comes to young or infant children in a same-sex relationship it is important to have a number of  features of the testamentary Guardian Will clause in place:

  • You may give special thought as to the Guardian representing your interests even when your partner survives;
  • You may give special care to other persons who may well have access to your child or children, these may well be grandparents, family members or even the sperm donor or birth mother; and
  • You will particularly give thought to an agreement with your partner as to the possibility of a Wills Contract to provide for your child/children’s interests in the event that you predecease your partner;
  • Ensure that the rights of any surrogate are protected.

A decision may well need to be made as to a quality other gender figure in your child’s life who will model good male or female attributes. This is a personal decision for the couple. Do you need to make any specific directions as to day to day requirements, and do you require life insurance to cover the expenses of the guardian.

As a former lecturer in Wills and Succession at the University of Wollongong I pressed the importance of a Will Guardian for infant children. Speaking in seminars I would often say to couples with children that their most important duty was to ensure that in the event of both of them passing away the right person was appointed as testamentary Guardian.

In my experience I have many gay friends who have children who are are well-balanced and extremely happy. If you watched or attended the 2018 Mardi Gras you will have seen many children participating who were energetic, happy and proud to be there.

Dr Lindsay Stoddart joined Owen Hodge Lawyers in September 2016 and is well experienced in all areas of Estate Planning. His particular areas of interest include Testamentary Trust Wills, Generational and Wealth Creation, Disability Trusts, End of Life documents and contesting Wills. Lindsay enjoys fine dining in the Drummoyne area with his partner of close to 5 years.