Jo Briscoe and her partner Bo are “extremely excited” they can finally get married after the recent passing of the same-sex marriage bill by Parliament.
The couple, from Thornbury in Melbourne, have been together for two years and had thought about going overseas to marry, but were hoping it would be possible to do it here.
“We knew pretty soon after we met that we were done, and this would be for life,” Briscoe says.
The couple are planning a wedding for this time next year.
Same-sex couples are expected to keep the wedding industry busy over the next year. But in the rush to get hitched, couples should not forget about the need for a will and an estate plan, or to have them updated.
For example, marriage generally revokes any previous will automatically. Anna Hacker, national manager of estate planning at Australian Unity Trustees, says the only time marriage doesn’t revoke a previous will is where it is made in “contemplation of marriage” – where you do the will knowing you are going to get married.
This applies to straight couples as well, but could particularly affect many same-sex couples in long-standing de facto relationships who have drawn up legal and financial agreements precisely because they couldn’t get married. Some of the paperwork may need to be redone in the event of a formal marriage, even if it’s to the same person.
Briscoe, 42, says she and Bo, 37, are aware of the financial and legal implications of marriage but she believes there is a bit of a “knowledge gap” in the community around some of the finer points.
New wills are top of the “to-do list” for the new year. Briscoe had one that was 20 years old, while Bo doesn’t have one.
Briscoe, who works as a production manager, owned a flat before she met Bo and had asked about updating her will to ensure her partner would inherit. Instead, they’ve sold the property and plan to buy a place together.
She and Bo have already put in place some legal protection for each other in recent months, combining finances and setting up binding nominations for their superannuation accounts.
Hacker says binding death nominations, which are separate to a will, usually last for three years before they have to be renewed. Some funds can be invalidated by marriage. De facto protection
Hacker says is also important for couples in de facto relationships to make a will and estate plan that includes a power of attorney.
Sometimes those in de facto relationships can be treated unfairly if one partner dies or is critically ill or injured in the absence of a will and estate plan, she says.
A partner in a de facto relationship may not be considered next of kin and not included on the death certificate or allowed to make medical decisions on behalf of their partner, she says.
That may lead to situations where friends of the couple are asked to sign affidavits stating that they believe the couple were de facto, or the surviving member of the relationship being required to make public details about the relationship that are private or personal.
Hacker says marriage automatically invokes these rights.
Briscoe says it’s a huge relief to know that marriage will simplify the next-of-kin rights for health care and end-of-life decisions.
“Obviously there’s a massive symbolic significance to the marriage, but it’s also the straightforwardness of the legal situation,” Briscoe says. DIY will kits
It can be tempting to save on legal fees and use a DIY will kit, such as those available from newsagencies or the internet. However, that could be a false economy.
Those with blended families, in particular, are likely to find paying a lawyer to draw up a will well worth the money.
“The courts are littered with examples of do-it-yourself wills that have gone wrong”, says Brian Hor, special counsel, superannuation and estate planning at Townsends Business and Corporate Lawyers.
“Unless you are a specialist estate planning lawyer,
there is a high probability you will get it wrong – and simply end up imposing unwarranted anxiety and frustration and legal expense upon your loved ones at the worst possible time for them.” Update will
Stephen Hardy, national manager of estate planning at Equity Trustees, says it is important not just to create a will, but to keep it up to date.
The consequences of putting the will in the bottom drawer and forgetting about it can mean more problems than not having a will at all.
For example, in the breakdown of a marriage in most states even when a divorce is finalised, it does not mean the will is necessarily revoked.
“If a will has not changed to acknowledge this, then there is the possibility of the former partner having a legal say in how the will is administered,” he says.
Hardy knows of cases where marriages have ended acrimoniously and the will has not been changed to reflect this bitter breakdown, with the estranged partner still being the executor and sole beneficiary of the will. Changes to family structure
Hardy says changes to the structure of a family, and changing dependants, will often require a will to be changed.
“The birth of new grandchildren, arrival of stepchildren or half-siblings could require a rewording of a will to ensure everyone is treated appropriately,” he says.
Hardy says, in his experience, it’s often when a will doesn’t get changed to reflect new family circumstances that there can be costly court cases where aggrieved parties feel they have been poorly treated.
Give particular thought about whom to make executor of the will. People often nominate their spouse or a trusted friend who is of roughly the same age, but consider if it will remain feasible as you get older.
Michael Tiyce, a lawyer and principal of Tiyce & Lawyers, says wills should be reviewed about every five years – earlier if there is a major change in family or financial circumstances. Binding agreements
Binding financial agreements, also known as prenuptial agreements, are more watertight than they used to be due to court decisions and prenups’ increasing popularity, Tiyce says.
Prenups can be drawn up during the course of a relationship, not just at the start.
Under the law, if a couple lives together for just two years their financial assets can be divided the same way as if they had been married for decades.
Tiyce says binding financial agreements appeal to those who are in their second or third marriage, especially where they are bringing assets into the marriage.
A binding financial agreement is triggered only if the union ends and specifies how the assets should be divided.
That is separate from the will, which comes into effect on the death of one of the partners or a power of attorney, which is invoked when one of the partners is incapacitated.
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