Wills & Estate Planning For Same-Sex Couples

As family lawyers, we receive many questions when it comes to wills and estate planning. While Queensland and Australian law has come a long way in protecting the rights of LGBTQ+ individuals, it's remains particularly important for same-sex couples to know where they stand and carefully consider their estate planning needs.

What is Estate Planning?

Estate planning is the process of arranging your affairs now to ensure that your estate is efficiently distributed according to your wishes after your death. Estate plans are put in place to look after your loved ones, and to minimise tax accrued with the transfer of your assets.

Leaving a Will is the simplest form of estate planning. A Will allows you to set out how you’d like your assets distributed, to make gifts and establish trusts, to appoint executors or trustees, or guardians to look after children under the age of 18.

What Does The Law Say About Wills & Estate Planning in Qld?

In Queensland, the law relating to wills and estate planning is governed by the Succession Act 1981. This act sets out the legal rules for making a will, including who is eligible to make a will, what must be included in a valid will, and how a will can be challenged.

Under the Succession Act, any person who is over the age of 18 and has the mental capacity to do so may make a will. To be valid, a will must be in writing, signed by the person making the will (also known as the "testator"), and witnessed by at least two people who are present at the same time.

You can also legally appoint someone you trust, such as a close friend or a relative, to handle your affairs on your behalf by signing an enduring power of attorney.  A Will operates after you pass, whereby an enduring power of attorney operates while you’re alive.

The Succession Act also sets out the rules for how a will should be interpreted and how a person's assets should be distributed if they die without a will (also known as dying "intestate").

For example, if a person dies intestate and they are survived by a spouse or domestic partner, the spouse or partner will generally be entitled to a certain percentage of the deceased's estate. If the deceased is not survived by a spouse or domestic partner, their assets will be distributed to other family members as specified by the Act.

Does The Same Law Apply To Same Sex Couples?

In short, the answer is yes. The Succession Act applies to all individuals in Queensland, regardless of a person’s sexual orientation or gender identity. This means that same-sex couples have the same legal rights as opposite-sex couples when it comes to creating a will and making provisions for the distribution of their assets upon death.

What Legal Issues Should Same Sex Couples Should Consider When it Comes To Estate Planning?

Despite the same laws applying to same-sex couples as they do to heterosexual couples, there are some additional considerations you should keep in mind. For example, if you and your partner are not married or in a registered domestic partnership, you may not be considered each other's next of kin. This can have implications for things like making medical decisions on behalf of your partner in the event of an emergency. To ensure that you have the legal authority to make these decisions, you may want to consider creating an enduring power of attorney.

Another important aspect of Wills and estate planning for same-sex couples is ensuring that your assets are distributed according to your wishes in the event of your death. This can be especially important if you have children together that one or both of you are not the biological parent of, as you'll want to make sure that they are provided for. By creating a will, you can specify who you want to be the guardian of your children and how you want your assets to be divided. If you have a pet or pets, you will want to make sure that you appoint a guardian, otherwise they may end up the responsibility of your residuary beneficiary.

While not limited to same sex couples, it is also important that this Will is valid. In order for a Will to be valid, there are many legal requirements it must meet. If the Will fails to meet these requirements, it will be invalid, and the law will have considered you to die “intestate”.

In addition, it is essential you review your Will regularly, and update as required. Events such as marriage, divorce, the birth of children, death of a beneficiary, change in financial situation etc. are all occasions that call for a Will to be reviewed, as these events may change or cancel certain gifts or appointments, unless the Will contains specific clauses.

Ensuring you have a robust, valid, and updated Will is the best way to ensure that your wishes are respected should anything happen to you. The clarity of a concise Will goes a long way to reducing or eliminating the stress and significant costs that families can face when there is no Will and disagreement about ongoing custody and/or how assets should be divided or custody be taken.

Ready to Make Get Your Wills & Estate Planning in Order?

Overall, it's important for same-sex couples to take the time to carefully consider their estate planning needs. By working with a qualified family lawyer at Pullos Lawyers, you can ensure that your wishes are properly documented, and your loved ones protected in the event of your passing. Our family lawyers are compassionate and experienced in dealing with a number of sensitive matters, including property settlement, spousal maintenance, child support, and legal issues specific to the LGBTQ+ community, and can help provide solutions and guidance to suit your individual circumstances. If you're in a same-sex relationship and have questions about Wills and estate planning, or any other family law issue, contact us.