Wills for same-sex couples

Relationship recognition for same-sex couples in Australia can often differ from state-to-state while the subject of marriage equality continues to be debated at a federal level, but the ACT’s Public Trustee (PTACT) is hoping to get the message straight on wills.

All states and territories in Australia recognise cohabiting same-sex couples as ‘de facto couples’, which gives them the same rights as cohabiting heterosexual couples. Currently New South Wales, Victoria and Tasmania have a Relationships Register under relationships legislation in those states allowing for the registration of de facto and same sex relationships.

But the ACT is the only jurisdiction providing specifically for the registration of same-sex unions.

However, even with these measures, without a valid will, same-sex couples risk having their assets pass to family members instead of their partners upon their death.

The intestacy laws (the laws that govern distribution of assets when there is no valid will) may also treat a same-sex spouse as a mere stranger, bypassing that person in favour of a blood relative. By executing a will, same-sex couples can ensure that no matter where they die, their spouse will receive all to which the spouse is entitled upon their death.

A clause in a will which clearly defines their relationship to their same-sex spouse provides stronger evidence of the testator’s intent to be considered as a couple, regardless of the laws of the state or territory in which they reside. Moreover, a carefully prepared Will, which sets out the testator’s intentions clearly, may also deter a challenge by a disgruntled family member.

The will can also allow same-sex couples to appoint each other as guardian for their minor children in the event of death. The guardianship clause is particularly helpful if a same-sex spouse moves to a state or territory hostile to marriage/adoption by same-sex couples.

Superannuation benefits usually do not fall into and form part of an estate. Since 2004 the Superannuation Industry (Supervision) Act 1993 allows tax free payment of superannuation benefits to the surviving partner of interdependent relationships, which includes same sex couples, or a relationship where one person is financially dependent on another person.

Having a properly executed will with explicit language about same-sex couples’ relationship to each other and their testamentary intentions may provide clarity to an otherwise complex and challenging state of affairs.

PTACT makes wills for same-sex, de facto and married couples as well as for single people. They prepare wills for persons 60 years and over at no charge where you appoint the Public Trustee as your executor.

Visit the Public Trustee’s website at www.publictrustee.act.gov.au for more information.