Legal and estate planning for same-sex couples

Australian law has changed a great deal in two decades. Commonwealth superannuation law has recognised same-sex partners since 2008, and most Commonwealth tax law since 2009. Same-sex couples have been able to marry since December 2017. Every state and territory now treats de facto partners, including same-sex partners, in much the same way as married spouses under its intestacy rules.

So the old fear, that a partner counts for nothing, is largely out of date. What remains is narrower and more practical: a handful of places where recognition depends on evidence rather than status, and a few decisions that pass to whoever holds a formal role rather than to whoever was closest.

Those are the areas this guide covers.

If the person closest to you is not a partner at all, a different set of rules applies. That is covered in planning when your closest people are not your legal family.

Recognition depends on what you can document

Three positions, with different amounts of work attached to each.

Married. The clearest form of recognition, and the least likely to be questioned. The marriage certificate does the work.

In a registered relationship. Several states and territories offer relationship registration. The registration certificate serves a similar purpose.

De facto. The relationship is recognised in law, but it is a question of fact rather than a matter of record, so it sometimes has to be established with evidence. Joint bank accounts, a joint lease or mortgage, shared utility accounts, and statutory declarations from people who know you as a couple are the usual kinds.

There is a detail in the de facto position that catches people out. When there is no will, most states and territories treat a de facto partner as a spouse only after the relationship has lasted a minimum time. That is two years in most places and three in South Australia. In some, having a child together or registering the relationship removes the time requirement. South Australia also needs a court declaration for a partner who was not registered. The Northern Territory's rules work differently again, particularly where the person who died also had a spouse. Couples of eighteen months and couples of five years can be in quite different positions, so it is worth checking how the rules work where you live.

A will replaces the intestacy order with your own decision

Where there is no valid will, the estate is distributed under the intestacy rules of that state or territory. Those rules are a fixed order, and while they do now reach a de facto partner, getting there can involve establishing the relationship to a court's satisfaction, which takes time and money at a bad moment.

A will removes that question. It is also the document that reduces the room for argument about what was intended.

What a will can do, in general terms: direct where the estate goes, appoint an executor to administer it, deal with specific assets, and take effect only if it has been signed and witnessed in the way that state or territory requires.

Whether your existing will still does what you want, and what it should say, is a conversation for a solicitor admitted in your state. If a will predates your current relationship, that is worth raising with them, because marriage and the end of a relationship can affect a will in ways that differ between jurisdictions. Marrying generally cancels an earlier will unless it was made with that marriage in mind, which matters for couples who were de facto before they married. The end of a de facto relationship cancels gifts to a former partner in some states but not in others.

The executor usually decides what happens to the body

This is the part most people do not know, and for couples whose families have not accepted the relationship it is the sharpest risk in this guide.

The right to decide what happens to a person's body does not follow whoever was closest. It usually follows the executor named in the will. Where there is no will, it usually goes to the person with the strongest claim to manage the estate, and that sends the question back down the intestacy order towards blood and marriage. A court can weigh other things if there is a dispute, but that is where it starts.

Written funeral wishes are generally treated as wishes rather than binding instructions. They tell the executor what was wanted. They do not move the decision to someone else.

So the question of who holds the executor role carries more weight than it appears to. It is worth understanding, with a solicitor, what it means in your situation.

Superannuation sits outside your will

Superannuation does not automatically form part of your estate. Your will does not reach it unless it is specifically directed there. The trustee of the fund decides who receives your superannuation death benefit, within limits set by Commonwealth law, unless a valid binding death benefit nomination is in place.

A binding nomination directs the trustee. A non-binding nomination is a preference the trustee can weigh but does not have to follow.

On recognition, the position is better than it is often assumed to be. Under the Superannuation Industry (Supervision) Act 1993, a spouse includes a person of the same sex who lives with you on a genuine domestic basis in a relationship as a couple. A same-sex de facto partner is a spouse for this purpose, not a lesser category. What a fund may still ask for is evidence that the relationship existed, which brings you back to the documents in the first section.

Questions your fund can answer directly:

• Whether a death benefit nomination is currently recorded on the account
• Who any existing nomination names
• Whether the fund offers binding nominations, and whether they lapse
• When an existing nomination expires, since binding nominations commonly lapse after three years unless confirmed, a fund's rules can set a shorter period, and some funds, including self-managed funds, allow nominations that do not lapse
• What evidence the fund would want in order to recognise a de facto relationship

Worth doing this for each fund separately if there is more than one. Super accounts in your name, including lost or unclaimed super, can be found through ATO online services linked to myGov (ato.gov.au).

Medical decision makers are appointed, not assumed

An Enduring Power of Attorney allows someone to be appointed to make financial and legal decisions if you lose the capacity to make them yourself. A standard power of attorney stops working when capacity is lost. An enduring one continues, which is the whole point of the distinction.

Medical and personal decisions are covered by separate documents again. Some record your wishes, some appoint the person who decides, and some do both. The names differ in each state and territory: advance care directive, advance health directive, enduring guardianship, advance personal plan, health direction.

For same-sex couples, having these in place solves a practical problem rather than a legal one, and it is worth being clear about which.

Being listed as next of kin does not, on its own, give anyone authority to make healthcare decisions in Australia. Where a person cannot make their own decisions and has appointed nobody, each state and territory has a statutory list of who can decide for them. In most, a spouse or domestic partner in a close and continuing relationship sits at or near the top of that list, ahead of parents and siblings. South Australia is the exception. There, a partner sits in the same group as parents, siblings and other relatives.

The real difficulty is proof under pressure. A married couple produces a certificate. A de facto couple sometimes has to establish the relationship to someone who does not know them, at short notice, in an emergency. An appointment made in advance settles the question in a document rather than in a conversation at the worst possible moment.

Once documents exist, copies matter more than originals filed away. A treating team, a hospital, and the person appointed all being able to produce one is what makes the appointment work in practice. Where a provider questions someone's authority, the document is the answer, and every health service has a complaints and escalation process if it is not accepted.

Which instrument applies where you live, and what it can cover, is worth checking with your state health department or a solicitor. Public trustees and community legal centres in most states can also help.

How property is held changes where it goes

If you own property together, the form of ownership decides what happens, and it can override the will.

Joint tenants. When one owner dies, the property passes automatically to the surviving owner by survivorship. It does not form part of the estate and the will does not affect it.

Tenants in common. Each owner holds a distinct share. When one owner dies, that share forms part of their estate and passes under their will, or under the intestacy rules if there is no will.

The title records which applies. A solicitor can explain what the current form means for your situation and whether it matches what you both expect.

A valid will can still be challenged

Australian family provision legislation allows certain people to claim against an estate even where a valid will exists, on the basis that they were not adequately provided for.

Who is eligible to bring such a claim varies between states and territories. Adult children, spouses and de facto partners are eligible in most places. Whether parents and siblings can claim depends on the jurisdiction and often on whether they were dependent. This is not uniform national law and general descriptions of it are frequently wrong.

Time limits vary too, and they do not all run from the same event. In some jurisdictions the clock starts at the grant of probate. In others it starts at the date of death, which is the trap, because a grant commonly issues several months after a death and someone told the clock starts at the grant can believe there is time left when the period has already closed.

Same-sex couples are not more legally exposed to these claims than any other couple. But where a family has not accepted the relationship, family provision is the mechanism a dispute tends to travel through. A solicitor can advise on what that means for your circumstances, and on whether anything in your situation warrants particular attention.

What is worth checking

• Whether your will is current, and whether it still reflects your intentions and your relationship
• Who is named as executor, given that this role usually carries the funeral decision too
• What nomination is recorded with each superannuation fund, and whether it has lapsed
• What evidence each fund would want for a de facto relationship
• Whether an enduring power of attorney and a medical or personal appointment exist, and whether the people who would need them have copies
• How any jointly owned property is held on the title
• Whether the evidence of a de facto relationship is easy to find, if you are not married

A solicitor who practises in estate planning can work through all of these. Community legal centres in most states offer an initial conversation at no cost, which can be a way to understand what is needed before committing to fees.

This is general information. For your own situation, speak with a solicitor admitted in your state or territory.