Your Will

Gay and lesbian Will warning

While it’s essential that all adults have legal Wills, it’s particularly vital for gay and lesbian singles and couples, writes Mal Byrne.

While it’s essential that all adults have legal Wills, it’s particularly vital for gay and lesbian singles and couples, writes Mal Byrne.


27/7/12: Read the article from Blaze magazine here

If you die intestate (without a legal Will),  your estate is distributed according to the order of priority set out in Part 3A of the Administration and Probate Act.

If your net estate (the estate that is left after your debts are paid) is $100,000 or less, the estate goes to any surviving spouse or domestic partner.  If your net estate is $100,000 or more, the first $100,000 will go to your spouse or domestic partner and then the balance over $100,000 will be split equally between your domestic partner and any surviving children.

For example, if your net estate is half a million dollars and you have a surviving spouse or domestic partner, the surviving spouse or domestic partner will inherit the entire estate.  However, if you have a spouse or domestic partner and two children, the spouse or domestic partner receives  $100,000 and then half of the remaining $400,000 giving him/her a total of $300,000.  Your two surviving children will split the remaining $200,000 equally and receive $100,000 each.  Depending on your family circumstances, this arrangement could cause severe upheaval.  For example, if the entire estate consists of a house in your name worth $500,000, your surviving spouse will either have to take out a mortgage for $200,000 to keep the house or sell it so the children can receive their $200,000 share.

Another problem is that spouses and children have to prove that they meet the legal definition of those terms under the legislation before they can inherit.  At the moment, gay marriage is not legal in Australia.  Hence the term “spouse” does not apply to gay and lesbian couples as they stand.  The term “domestic partner” can apply to gay and lesbian couples, but it is legally specific.  To prove that your partner is a domestic partner under the legislation, it will have to be established that he or she:

1. was living with you when you died

2. was living with you for at least three consecutive years or three years out of four years in total when you died, or that a child was born of the relationship even if that child had not survived.

These requirements can cause problems for gay and lesbian couples who believe sincerely that they are partners, but do not necessarily meet the definition of domestic partner under the legislation.  Some gay and lesbian couples do not necessarily live in the so-called conventional manner as heterosexual couples.  Some gay and lesbian couples will regard themselves as partners, but live in separate houses.

On the other hand, elder gay and lesbian singles may cohabit with other gay and lesbian singles as mutual carers, without regarding each other as domestic partners.  It is possible that a single carer in that situation might be able to establish under the legislation that they were the deceased’s domestic partner as the relationship was a close personal relationship, even though the deceased did not regard the relationship as such.

Another common circumstance for gay and lesbian couples and singles is the existence of a former spouse of the opposite gender who they have not divorced.  If you die without a Will and haven’t divorced your former spouse, that spouse could inherit all of your net estate if you are single or split the net estate 50/50 with your surviving domestic partner.

Apart from the complexities of the definition, any person who considers him/her a domestic partner of the deceased person will have to get an order from the District Court declaring them to be that person’s domestic partner before they can inherit under the Administration and Probate Act.  In order to get the declaration, your partner would have to prove to the Court that they were your domestic partner.  This would mean getting sworn statements from relatives or friends who regularly frequented your home, saying that they observed you and your partner and as far as they were concerned, you were living together in a close personal relationship.  Your partner would almost certainly have to instruct a lawyer to assist with acquiring  that evidence and the cost of administering the estate will skyrocket.  The cost will come out of your estate and reduce your partner’s entitlement even if they are successful in getting the declaration.

Apart from the costs, there is also the stress and emotional upset placed on your domestic partner who is not only having to deal with the grief over your loss, but at the same time having to prove your relationship.  Deceased estates do not often bring the best out in people.  Relatives including children who may have resented your relationship or and never approved may take the opportunity to make life as difficult as possible for your partner to properly inherit your estate.

Gay and lesbian singles or couples with children can also face problems with proving paternity and/or maternity.  Once again, the growing number of gay and lesbian singles and couples who have children outside of the conventional means the child that you regard as yours may not fit the legal definition of “child” under the Family Relationships Act.

Legally adopted children or stepchildren in the biological sense will meet the definition. However, with children born through in vitro fertilisation (IVF), the law presumes that the woman who gives birth to the child is the child’s mother and that the woman who supplies the ovum but does not give birth to the child is not the child’s mother.  With respect to paternity, there are circumstances when a father who supplies sperm will be termed to be the legal father of the child, and circumstances where that person will not be deemed to be the legal father of the child.

It is important to remember that your children will be grieving in the aftermath of your death.  The last thing they want to do is have to go to Court while grieving to prove that they are your child under the law.  To make matters worse, there will be circumstances where they will not be able to prove they are your child under the law and will miss out.  Once again, there is also the cost involved all of which will come out of your estate.

For singles, if you do not have a domestic partner or children, and do not have a legal Will, your estate will be divided in order of priority between parents, siblings, grandparents, aunts and uncles and so on down the chain.  If you die without any blood relatives whatsoever, your estate will go to the Public Trustee of South Australia on behalf of the State of South Australia.  You may not care about that, but if you do care, the only way to stop it happening is to make a Will.

In addition to ensuring that you have a legal Will, it is important to ensure that you have made arrangements with your superannuation fund regarding distribution of those funds upon your death.  When you have superannuation, the fund will normally ask you to nominate how you want those funds distributed upon your death.  There are two types of nominations, binding and non-binding. If you make a binding nomination about how you want your funds distributed upon your death to the super fund, the trustees of the fund will be bound by that nomination and your superannuation will then be dealt with separately from the remainder of your estate instead of according to your Will if you have one or Part 3A of the Administration and Probate Act if you do not.  However, a binding nomination can only be made to a financial dependent or the executor of your estate as the legal personal representative of that estate. Binding nominations are also only valid for three years and need to be updated.

If you make a non-binding nomination or a binding nomination fails (eg the financial dependent is dead), the fund retains the discretion to decide to whom the monies are paid. Your superannuation fund will only be bound by your Will if you make a binding nomination to the fund that your superannuation funds are to be distributed according to your Will upon your death.  Hence, not only is it vital that you have a legal Will, but if you have superannuation, it is important to ensure that you make a binding nomination to the fund about how you want the funds distributed so that your entire estate being both superannuation and non-superannuation assets is distributed according to your wishes.

There are exceptions. Some government legislated super schemes have defined beneficiaries and not all super funds will allow binding nominations.

The bottom line is make a Will, make a Will, make a Will! Don’t make a bad situation worse for your loved ones by leaving them with an unholy mess to deal with on top of everything else.

For assistance with your Will or Estate matter in South Australia, Western Australia or Northern Territory, contact your nearest TGB office.

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.