Legal and estate planning for same-sex couples

Australian law has changed significantly over the past two decades, and same-sex couples now have the same legal rights as opposite-sex couples in most areas. But there are still situations where recognition is not automatic, where documents need to be in place to protect both partners, and where assumptions can cause real problems.

This guide outlines the areas where same-sex couples should pay particular attention, and what to do about them.

How are same-sex couples legally recognised in Australia?

In Australia, same-sex couples are recognised as de facto partners under federal law if they have lived together in a genuine domestic relationship. You don't need to be married or registered as a couple for many legal purposes, but proving the relationship exists can become necessary in practical situations.

If you are married, you have the clearest form of legal recognition. Keep your marriage certificate accessible.

If you are in a registered relationship (some states and territories offer this), keep the registration certificate accessible.

If you are a de facto couple, the relationship is still recognised under law, but you may need to provide evidence of the relationship in some circumstances. This can include joint bank account records, joint lease or mortgage documents, shared utility accounts, or statutory declarations from people who know you as a couple.

The more evidence you can point to, the smoother things will be.

Why is a will the single most important document?

For any couple, a valid will is the foundation of estate planning. For same-sex couples, it is especially important.

Without a valid will, the rules of intestacy apply. In Australia, intestacy laws generally recognise de facto partners (including same-sex partners) as having a claim on the estate. However, the process is more complicated than for a married couple, and it may involve a court process to establish the relationship.

More significantly, a valid will removes any uncertainty about your intentions. It also reduces the risk of a legal challenge from family members, which is a real possibility in some situations.

Your will should:

• Name your partner as the primary beneficiary of your estate
• Name an executor (often your partner, but consider a backup if your partner may not be in a position to act)
• Address what happens to specific assets if you choose to specify
• Be signed and witnessed correctly to be legally valid in your state or territory

If you don't have a current will, or if your will predates your current relationship, make this a priority. A solicitor who specialises in estate planning can prepare one in a relatively short appointment.

Why do superannuation nominations matter so much?

Superannuation does not automatically form part of your estate. It sits outside your will. The trustee of your superannuation fund has discretion over who receives your superannuation death benefit, unless you have made a binding death benefit nomination.

Binding death benefit nominations direct the trustee to pay your superannuation to specific beneficiaries. They are legally binding (unlike non-binding nominations, which are just a preference).

For same-sex de facto couples, most superannuation funds will recognise your partner as a dependant, which means they can receive your superannuation directly. But this recognition is not always automatic, and some funds require evidence of the relationship.

The most important things to do:

• Check whether you have a death benefit nomination in place with each superannuation fund you hold
• Confirm whether any existing nomination names your partner
• If you have a binding nomination, check whether it has expired (most expire every three years)
• Contact your fund to understand what documentation they would need to recognise your partner as a de facto spouse

If you have superannuation in multiple funds, do this for each one. You can find all superannuation accounts linked to your tax file number through the ATO service on myGov (ato.gov.au).

What Power of Attorney and medical decision documents do we need?

An Enduring Power of Attorney (EPOA) allows you to nominate someone to make financial and/or legal decisions on your behalf if you lose the capacity to make them yourself.

An Advance Care Directive (sometimes called an Enduring Guardian appointment, depending on the state or territory) allows you to nominate someone to make medical decisions on your behalf, and to document your wishes about medical treatment.

For same-sex couples, having these documents in place is particularly important. Without them, medical decision-making authority may fall to a next of kin as defined by law, which in some states still defaults to biological family members ahead of an unmarried partner.

If you are the patient:

• Make sure your partner is named in your EPOA and Advance Care Directive
• Give copies to your medical team, your hospital, and your partner
• Tell your medical team explicitly that your partner is your primary support person and decision-maker

If you are the carer or partner:

• Ask about these documents if they haven't been completed yet
• Make sure you have copies that you can produce if needed
• If a hospital or medical provider ever questions your authority to make decisions, produce the document and escalate if necessary

The documents required vary by state and territory. A solicitor can prepare them, or they can be completed with guidance from your state's public trustee or legal aid service.

How does property ownership work if one of us dies?

If you own property jointly, the form of ownership matters.

Joint tenants: if one owner dies, the property passes automatically to the surviving owner by survivorship. The property does not pass through the estate and is not affected by the will.

Tenants in common: each owner holds a distinct share. When one owner dies, their share passes according to their will (or intestacy rules if there's no will). If you own as tenants in common and your will doesn't address your share, there could be complications.

Check the title for your property and understand which form of ownership applies. A solicitor can advise on whether the form of ownership is appropriate for your situation.

Can family members challenge the estate?

In most situations, estates pass smoothly according to a valid will. But it's worth knowing that in Australia, eligible persons including parents, siblings, and adult children can make a claim against an estate under family provision legislation, even where a valid will exists.

Same-sex couples are not more legally vulnerable to these claims than any other couple. But in situations where biological family members have not accepted the relationship, these provisions can be used as a vehicle for dispute.

The best protection is a clear, professionally prepared will that documents your intentions. A solicitor can also advise on whether any specific provisions are warranted given your family situation.

What are the practical steps to take now?

• Confirm your will is current, names your partner as primary beneficiary, and is correctly signed and witnessed
• Check your superannuation nominations across all funds, update if necessary, and confirm your fund recognises your partner
• Put an Enduring Power of Attorney and Advance Care Directive in place if you haven't already
• Give your medical team written confirmation of your partner's role as decision-maker
• Check the form of ownership on any jointly held property
• Gather evidence of your de facto relationship if you are not married (joint accounts, lease/mortgage, correspondence to both of you at the same address)

A solicitor who specialises in estate planning or family law can assist with all of these. Some community legal centres offer free initial consultations, which can help you understand what's needed before you commit to professional fees.