Taking place from 17 February to 5 March 2023, this year Sydney is the host city for WorldPride and will celebrate Australia’s diverse LGBTIQA+ community.

‘LGBTIQA+’ is an evolving acronym that stands for lesbian, gay, bisexual, transgender, intersex, queer/questioning and asexual persons.

Not only does Sydney WorldPride represent the first time the event will be staged in the southern hemisphere, but coincides with the 50th anniversary of the first Australian Gay Pride Week, the 45th anniversary of the first Sydney Gay and Lesbian Mardi Gras, and the fifth anniversary of Marriage Equality in Australia.

With Sydney on the world stage, what better time to address some estate planning and dispute considerations for the Australian rainbow community.

De facto relationship – does my LGBTIQA+ relationship constitute as one?

The phrase ‘nuclear family’ has traditionally referred to a married heterosexual couple raising their own biological children. Nowadays, more people are living in ‘non-traditional’ families than ever before.

Estate planning for married same-sex and LGBTIQA+ couples is now largely the same as estate planning for any other married couple. But if you are not married to your partner, estate planning should be made a priority.

De facto relationships may generate problems when relatives of the deceased person dispute the existence of the relationship.

A de facto relationship is where a couple, of the same or opposite sex and who are not legally married, live together in a genuine domestic relationship for a period of two years.

However, there is no hard and fast rule to determine whether a couple have been living together on a genuine domestic basis. Rather, a court takes into consideration a number of circumstances outlined in section 32DA of the Acts Interpretation Act 1954 (QLD).  

It is important to note that gender is not a relevant consideration in relation to two people living together on a genuine domestic basis. This means that a de facto relationship may include a same sex couple.

It is important for LGBTIQA+ couples to seek advice around whether their relationship may constitute as a de facto relationship and the implications and risks this might have on their estate.

Marriage, separation or divorce – do I need to update my estate plan? 

Australia became the 25th country to recognise same sex marriage, behind countries such as New Zealand, Canada, Britain, and the Netherlands.

Many newly married LGBTIQA+ Australians may have neglected to properly consider some of the legal implications that will follow, particularly with regards to their estate plans.

In all other Australian jurisdictions, marriage automatically revokes any previously made Wills or Enduring Powers of Attorney, unless there is an express clause that states the document is made in contemplation of marriage.

Whether it is the start of a relationship or the end, it is important for LGBTIQA+ Australians to understand the effect marriage, divorce or separation can have on their estate planning and to know where you stand in terms of distribution of assets in the event of a death or incapacity.

Passing away without a Will – will there be unintended consequences?

If a person passes away and does not leave a Will, that person’s estate will be dealt with under the rules of intestacy, which vary slightly between Australian States.

Under the rules of intestacy in Queensland, if for example, a person dies without a de facto partner, spouse or children, their estate will be split equally between the deceased’s surviving parents. This may be last thing which that person would have wanted or intended.

Without a Will, again, there is a possibility that a family member of an LGBTIQA+ person disputes that a de facto relationship existed. In this example, the surviving partner may be in a position where they need to prove otherwise. 

A Will can offer you peace of mind, knowing your estate will be dealt with in the best interests of your nominated beneficiaries.

For new LGBTIQA+ parents, is also a critical aspect of estate planning is ensuring that you have appointed a guardian for your children in the event that you pass away. While young people in the LGBTIQA+ community may not want to think about ‘what if?’, or even consider making a Will, estate planning is important for them too. 

Making a claim – have I been excluded from or not adequately provided for under a Will?  

Although gay marriage was legalised in Australia on 9 December 2017, and acceptance of LGBTIQA+ people has increased in Australia, many members of the LGBTQIA+ community still face disproval, discrimination and other mistreatment from their own family.

This then may lead to estrangement or rejection and subsequently being inadequately provided for under a Will or left out entirely.

A LGBTQIA+ child who has been unfairly left out of their parent’s Will, falls into the categories of eligible persons who has standing to contest a Will by way of a family provision application.

Similarity, if an LGBTQIA+ person was in a same-sex de facto relationship with the deceased, and have been let out of their partner’s Will, they have standing to bring a claim against their deceased’s partner’s estate.

In respect to superannuation claims, if you are in a LGBTIQA+ de facto relationship, your partner will need to prove to your superannuation fund that they were financially dependent on you and that a de facto relationship existed.

Plan now – don’t leave it too late

For married or de facto LGBTIQA+ couples, it is important to know where you stand in terms of distribution of assets in the event of a death or even incapacity.

If you are part of the LGBTIQA+ community and have not yet written a Will, seeking the right advice will save time, money and prevent unnecessary stress for your loved ones in the future.

Additionally, if you feel you have been unfairly excluded from a Will, obtaining advice at the earliest opportunity will allow you to make an informed decision.

Please feel free to contact us today if you have any questions or concerns.