Where there’s a Will there’s a way, for same sex marriage: Australian Unity Trustees

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The passing of the Same Sex Marriage Bill by Parliament is cause for celebration for those in a same sex relationship, but they should also be aware of the legal implications of marriage, and plan for their family’s future accordingly, says Anna Hacker, Wills & Estates Accredited Specialist at Australian Unity Trustees.

“Marriage generally revokes any previous Will automatically, so those entering into marriage should consider updating their Wills to make sure they take into account the marriage.”

Ms Hacker said that any couple in a de facto relationship, regardless of gender, should have an up-to-date Will and estate plan that includes a Power of Attorney.

“Sadly, I have seen cases where family members have denied that a defacto relationship between two people exists, and claimed that the two people were simply friends, or flatmates.

“This can create 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 very private or personal.

“Not only are these details discussed in a court room before a judge and other involved parties, but cases are usually published so that other lawyers can study them.  It means that private details of people’s lives can become very public.

“This can be very embarrassing, and could easily be avoided by having an estate plan,” Ms Hacker said.

If there are children in the relationship where one of the parents is not a legal guardian, this can make the situation even more complicated.

“People are often surprised how complicated their lives can be in a legal sense, so it’s a good idea to get the situation clearly laid out in the estate planning process.”

From a legal point of view, marriage ensures more rights to a couple when it comes to death or medical decisions, when compared to de facto relationships, Mr Hacker said.

“Having a legally recognised marriage means avoiding situations where those in a same sex relationship are treated unfairly if one partner dies or is critically ill or injured.  For instance, in the past, a person in a same sex defacto 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. 

“Marriage automatically invokes these rights.

“However, couples should still consider creating a Will and estate plan to ensure their wishes are fully understood.  These documents outline how the one you love is to be looked after if something should happen to you, and defines who can make decisions about your medical care if needed.

“They also cover the care and financial implications for any children, which is important regardless of the legal status of the relationship.”

Australian Unity Trustees was established earlier this year to provide a range of trustee services to all Australians including: estate planning; executor appointments and estate administration; financial attorney; financial and legal administration; and the establishment and management of personal, native title, community and charitable trusts. It is the first traditional trustee financial services licence issued since the establishment of a national licensing framework for traditional trustee activities.

Australian Unity is a national health, wealth and living mutual company providing services to almost one million Australians, including 300,000 members. Australian Unity’s history as a trust mutual organisation dates back to 1840. It has grown organically—by continually evolving to provide the services and products needed by the communities it serves—as well as through successful strategic mergers and diversification in to new business activities.