Same Sex Couples – Make sure you have your Estate Planning in order!

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Same-sex marriages are increasing in numbers and it is hard to believe that it was only weeks ago the plebiscite results were announced. Remember the joy and dancing in the parks and the sheer delight on Magda Szubanski’s face. Then when the legislation was passed Penny Wong was in tears in the Parliament.


With some 20 years of estate planning experience under my belt, it has only been very recent that it’s become common to make Appointments of Enduring Guardianship those in same-sex relationships. Before same-sex marriage was legal, many parents would not accept that their son or daughter was living in ‘inappropriate circumstances’. Then on sudden-death, the parents would take over the funeral arrangements and often contest the Estate if there was no adequate Will.


It is very important to remember a number of Estate Planning principles, whether you are in a traditional or same-sex couple:


  1. On marriage, an old  Will and other Estate Planning documents will probably become invalid
  2. In any event have your Will and other Estate Planning documents reviewed by a skilled Estate Planning lawyer
  3. Ensure that you have in addition to a Will: Powers of Attorney, Guardianships and Advance Health Care Directives


As to your Will – you may have children. They may be from two or more relationships. They need to be adequately safeguarded with appropriate documents including, perhaps, a contract for mutual Wills. It does not matter what your sexuality is, there are terrible stories out there as to how after death a former spouse or partner does not abide by the faithful promises made during the relationship.


Your children matter. Their inheritance is important. Guardians must be appointed for infants.


Most of my gay friends are not getting married. They are happy that some of their friends are but for many, it is not a presenting or pressuring issue. However, the time may come that things will change because of age.


Have you decided, especially in the event that you do not have children or will not have children, what is to happen to your joint wealth on the death of the second of you to pass away? Who will share in it? Will 50% go to the beneficiaries nominated by each party to the marriage or relationship? What about insurances are they adequate and who should be the beneficiary?


What if you are wearing those new engagement rings but have not yet set the date? Must you wait for the new Will? The answer is a resounding no – you can make a Will in contemplation of marriage that will continue to be valid after you marry. The old adage is true ‘She who hesitates is lost’ and especially do not hesitate to make that Will. 


Like many member of the Gay Community, I’m not big on the Mardi Gras. This year one of my friends is celebrating her 70th birthday. We asked her what she would like for a gift and she said a trip to Sydney to attend the big event. So we are picking husband-and-wife up at 12:30 PM on Saturday and look forward to a rain free parade.


I hope to see you there.


This article was written by Dr Mal Stoddart

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