‘Til death do us part: What same sex couples need to know about how marriage affects their financial affairs.

Today is a historic day for same sex couples around Australia: Tuesday, the 9th of January, 2018, is the first day same sex couples can legally marry in this country. Wedding ceremonies took place just minutes past midnight – and no doubt the tears of joy flowed as freely as the champagne.

However, amid all the glamour and celebrations, the happy couples should not forget about the importance of having valid wills and estate plans, or getting existing wills and estates updated.

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Many same sex couples (in fact many Australians) may not be aware that marriage generally revokes any previous wills, with some exceptions.  One such exception is if the will was made in “contemplation of marriage” – but this is presumably unlikely in most instances for same sex couples, given the uncertainty leading up to the recent change in legislation.  

If your will is partially or wholly revoked by marriage, then in the event of your death your estate will be distributed according to a pre-determined formula under the laws of ‘intestacy’, which may not align with your wishes – this is especially likely in instances of previous marriages and children to other relationships, etc.

Same sex couples planning to marry should also consider any prior Powers of Attorney or Enduring Guardianship nominations which they have made.  An appointment of Enduring Guardian is revoked upon marriage, unless the person marries the Enduring Guardian.  Having your Power of Attorney and Enduring Guardian nominations in order will ensure the right person can look after your interests in the event that you are incapacitated or unable to make financial or medical decisions yourself.

Partners who have previously entered into a binding financial agreement (sometimes called a cohabitation agreement) which sets out how their property will be divided in the event of a separation, also need to be aware that marriage will render those agreements non-binding.

So, if tying the knot with your partner is on your to-do list now that the law has changed, then you should consider including on that list to contact a solicitor to make sure you tie up any loose ends while creating your own happily ever after.

RELATED: Do you have a valid will?

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