Same sex marriage – Effect on someone’s will and estate

Video transcript

Hello everyone. Adrian Corbould, Accredited Specialist, Wills & Estates, of Turnbull Hill Lawyers.

November 2017 – the responses to the same-sex marriage plebiscite have been revealed, such that 61% of respondents are in favour of same-sex marriage becoming legal.

It now remains up to the federal parliament to make those laws if they see fit and any specifics relating to those laws. Now that would be a federal matter that affects the entire country.

Now someone’s estate, as in how their estate, how their assets are dealt with upon their death, is a state matter, so New South Wales, Queensland, and it’s basically where they reside as at death and where their assets are at death.

Now there’s a little-known law in New South Wales, at section 12 of the Succession Act, and what it says is marriage revokes a will, so if someone has a will, upon marriage all the gifts in that will are revoked and that person becomes intestate, meaning their assets get dealt with under a legislated formula, which is another video that that you can watch.

The only difference is if in that earlier will they name their future spouse as a executor or a recipient of a gift, that part stays the same. Everything else, however, is revoked, so that’s why we always recommend people make a new will upon a significant event, such as marriage, so they know that their new will, will be the will that carries all their wishes.

So at present same-sex couples, if they have a will, nothing will change until they make a new will, because they cannot legally marry, so that will be affected. Also, divorce, section 13 of the Succession Act states that divorce revokes the gift to the former spouse – it doesn’t revoke the whole will, like marriage, it just revokes that specific gift.

So if the will leaves $100,000 to their spouse, that gift becomes annulled and that gift falls under intestacy, to be dealt with under the intestacy rules. So that will be changed as well, and these laws affect a deceased person whether they know it or not, so there’s nothing that you have to do consent to, or be aware of, it just happens.

So this is why we recommend all people update their wills every three years, or after a  significant life event, such as marriage or divorce.

Thank you for watching the video. These are some things that people may not be aware of which is why we like to discuss them. Thank you.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2023 Doyles Guide. Both were also listed in the 2022, 2021, 2020 and 2019 guides.