Same sex marriage: Adding Wills to the to-do list

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A number of same sex couples recently celebrated their marriage under the Marriage Equality (Same Sex) Act 2013 (ACT).

The new legislation also has an impact on succession law. The Wills Act 1968 (ACT) states that a Will is automatically revoked by the marriage of the will-maker, unless the Will was expressly made in contemplation of marriage. The definition of marriage has been amended to include same sex marriage. Similarly, entering a civil union also has the effect of revoking a Will, unless the Will was expressly made in contemplation of entering the civil union.

This provision can have a significant but unexpected impact on couples. Any couple who is planning to marry should consider their estate planning to ensure that their Wills remain effective and appropriate after their wedding. This is especially important for same sex couples who have just exchanged their vows or who are planning to marry under the new ACT marriage law.

As marriage was not previously an option for same sex couples in Canberra, it is unlikely that those couples who have gone to the effort of making Wills would have expressed them to be in contemplation of marriage. If a couple has made a Will in contemplation of entering a civil union, but then subsequently marries, their Wills are still be revoked by their marriage.

Revocation of a Will means that the person is ‘intestate’ and the rules of intestacy will determine how that person’s estate will be divided upon their death. The rules of intestacy can have harsh and unanticipated results, which is why it is so important to put a Will in place.

Marriage or entering a civil union can also have an impact on Enduring Powers of Attorney.  If an Enduring Power of Attorney is granted to someone other than the future spouse, then marriage or civil union will revoke the Enduring Power of Attorney, unless the Enduring Power of Attorney states otherwise.

For all couples planning their wedding day, it is crucial to add estate planning to the to-do list.

 

Rebecca Tetlow is an Accredited Specialist in Wills and Estate Law (NSW) and a Senior Associate at Dobinson Davey Clifford Simpson, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.

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