Getting married can revoke a Will or Enduring Power of Attorney. With the legalisation of same sex marriage in Australia in 2017, this now affects all Australians who are legally married.
Have you been married since 2017 or are you intending on getting married in the future?
If so, it is strongly recommended that you consider reviewing your estate planning documents. A Will can be made in contemplation of marriage (prior to marriage) so that it is not revoked once the marriage occurs. If this is not in your Will and you are now legally married, you will need to make a new Will confirming your directions and wishes. The same applies for Enduring Powers of Attorney, both in terms of revoking a document made prior to marriage and the ability to make one in consideration of marriage.
Have you been left out of a Will? Your rights to challenge or contest a Will
There are three categories of persons in Queensland that can make a claim on estate – spouses, children and certain other dependants.
Spouse can be a husband or wife or de facto partner. Whilst polygamous marriages are not legal, it is becoming more common for people to potentially be in polyamorous relationship with multiple partners, which depending on the circumstances, means some or all could fall under the definition of de facto spouse. Should a partner be classified as a de facto spouse, the partner’s children can then also fall under the children category as stepchildren.
Being left out of a Will because of your gender identity or sexuality (including if you have been estranged by your family) does not exclude you from making a claim on the estate.
What if you die without a Will?
Your estate will be distributed in accordance with the Succession Act 1981. There is a set order of people who are listed to receive your estate in set proportions – the first being any person who qualifies as a spouse and any children. Should you have no spouse or children, your estate will next be distributed to your parents. If your parents are deceased, it will then go to your siblings and/or nieces or nephews if any of your siblings have passed. There are further levels after this as well.
A similar order of next of kin can also apply to administer your estate (in a similar role as executor).
If you do not want your estate to be administered or distributed by or to your legal next of kin, we strongly recommend making a Will.
At Greenhalgh Pickard, our team of Estate Solicitors welcome all members of the queer community and consider ourselves LGBTQIA+ allies. We can provide a safe environment to discuss your estate planning and efficiently provide the expertise and support necessary to navigate both estate planning and deceased estates.
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Estates Team