Estate Planning - The Best Friend of Same-Sex couples
You would have to be living under a rock to be unaware of the recent debate in Australia as to whether same-sex couples should be given the legal right to marry.
The Marriage Amendment (Definition and Religious Freedoms) Bill 2017, was introduced on 15 November 2017 and passed the senate on 29 November 2017.
The bill amends the definition of "marriage" in the Marriage Act, omitting the words "man and a woman" and replacing it with the gender-neutral statement "2 people" . That amendment now now awaits consideration by the House of Representatives.
For many, this is a deeply personal question which touches on to convention, custom, religious belief, deeply held personal and political views.
Rest assured, we’re not here to debate the issue.
Rather, we’re here to tell you that, while it is still a matter for the House of Representatives to decide whether or not to pass the Marriage Amendment Bill which will allow for same sex couples to marry, prudent Estate Planning can be a same-sex couple’s best friend.
Because prudent Estate Planning for same-sex couples means that they do not have to “prove” that they are in a “genuine domestic relationship” to enforce their legal rights and entitlements as a couple in the event of death or incapacity.
Like all de-facto couples, same-sex couples are eligible to receive a share of their loved one’s Estate when they pass, including a share of superannuation and have standing to apply to be their partner’s guardian or administrator.
However for such applications and claims to be granted, the person applying must be able to satisfy the Court; or the Trustee of the Superannuation Fund (such as the case may be) that they lived in a genuine domestic relationship with the deceased. Many factors are taken into account some of which are listed below;
1. Whether the individuals shared a home;
2. Whether the individuals held jointly owned property or joint finances;
3. The level of financial support given to each other;;
4. Whether or not the individuals had a sexual relationship; and
5. The public recognition and/or perception of the relationship;
6. The commitment to a shared life together.
This can be difficult to prove in same-sex relationships. For example, one person’s family may not even be aware that they are in a same-sex relationship. This is particularly true of older generations. Accordingly, there may not be any public recognition of the relationship itself. Similarly, bank accounts and property may be kept separate.
As a result, in an already sad and stressful time, your loved one may be put into the position of having to find evidence to prove and substantiate your relationship to receive any benefit from your Estate or Superannuation.
How to avoid this? By having a valid Will and Superannuation Binding Death Benefit Nomination.
Similarly, an oft-touted argument in the same-sex marriage campaign is that same-sex couples face discrimination (even if unintended) in the event that their loved one is in hospital and requires care.
As they are not legally married, there is no automatic recognition of the same sex de-facto partner to help make decisions about the care their loved one receives.
While a same-sex de facto partner has the same standing as a heterosexual de-facto partner to apply to be appointed as administrator or guardian, the same difficulties in establishing a de-facto relationship outlined above may exist and in an extremely difficult time.
How can you avoid this?
By having a valid Enduring Power of Attorney.
For people in same-sex relationships, a valid Enduring Power of Attorney can make a significant difference, particularly when decisions around your care need to be made on an urgent basis.
Whether the bill passes the House of Representatives and makes it way in to Australian law, legalising same-sex marriage remains to be seen.
However, in the meantime, prudent estate planning remains a same-sex couples’ best friend to ensure that their loved ones are provided for in the event of one passing or otherwise, so that their loved one can provide them with immediate care and assistance in the event that they lose capacity.
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