Australia: Same sex couples who married overseas should check legal status of wills

Just when same sex couples thought the long fight for marriage equality in Australia was over and settled, another question has arisen over the legal status of wills signed by same sex couples who had earlier married overseas.

The question centres on the law of succession and how a wife or husband wishes to have their estate divided if they die.

Recognition of overseas same sex marriages creates legal grey area

Before the Australian law change in December 2017, when the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into force, thousands of same sex couples married overseas in countries where their marriages were recorded as legal. However, such marriages were not recognised as legal in Australia.

Parliament's vote legalising same sex marriage also gave legal recognition under Australian law to thousands of same sex couples who were married in other countries where it was legal to do so.

Those same-sex couples who wed overseas are now legally married under Australian law, but a question has arisen over whether any estate plans or wills they signed during the previous legal bar on same sex marriage have now been nullified.

Wills made prior to marriage revoked under NSW law

Section 12 of the Succession Act (NSW) states that a marriage revokes a will, so the sudden recognition under Australian family law of same sex marriages suggests that all the gifts in that will are revoked.

Under existing law if a person dies intestate – meaning without a will – their assets are distributed according to a legislated formula. This could mean gifts left in a will to anybody other than the spouse could end up being revoked.

There is nothing certain about this as yet, and the matter has not been tested in court, but it raises an issue that could be of concern to same sex married couples who wed overseas before the change to Australian family law.

If anybody in this situation is concerned about whether their will is legally secure, it would be wise to consult an experienced wills and estates lawyer and possibly update their will to ensure their wishes are carried out.

Implications for beneficiaries of wills

Under NSW law, where a will has been revoked, a spouse is entitled to a share of the deceased's estate. In some circumstances, the spouse could be entitled to the whole of the estate. This could mean that family and friends who were meant to be left something in the will could miss out.

It's important that the wishes of a person who distributes their estate to loved ones are respected – be they spouse, family or friends.

It's best for all concerned to have an ironclad will to avoid all the heartache and expense involved in a challenge to a will.

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