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Same Sex Marriage and Wills

January 9 2018 marked the first official day same-sex couples could legally wed in Australia. In addition, the same-sex marriage legislation passed by the Australian parliament also means that as of 9 December 2017 those Australians already married in an overseas jurisdiction will now have their same-sex marriage legally recognised within Australia.

All newly-weds and couples whose marriage will now be legally recognised in Australia should be mindful that under the Succession Act 1981 (Qld), a pre-existing will is automatically deemed void when a person marries, unless certain provisions have been made within the will contemplating the testator’s continuing de-facto relationship.

As a result it is important to note that:

  1. recognition of your overseas marriage could mean that any will you had previously made in Australia may now be void; and
  2. any will made by you which predates your marriage may also be voided, unless that will contained specific provisions contemplating your continuing de-facto relationship.

While the effect of recognition of overseas marriages upon wills is yet to be tested in courts, sufficient uncertainty exists around the area to warrant wills being re-drawn in order to ensure validity.

Should you hold any concerns with respect to any of your current estate planning documents or if you would like to consult with one of our estate planning lawyers, please do not hesitate to contact our office.