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Same-sex couples who wed overseas before Australia’s same-sex marriage reforms could find their wills are now invalid

Overseas marriages of same-sex couples were recognised from 9 December 2017 under Australian law.

But the fate of any estate plans drawn up following those marriages and before the Australian proclamation date is a matter of concern to Australian succession lawyers.

There is every possibility the wills were nullified by the overseas marriage from the date the overseas marriage was recognised in Australia.

This could result in costly estate claims between spouses and other relatives and have a different result from how a person wants their estate to be distributed and how it is treated under state succession law.

If the will is found to be invalid, the distribution of the estate would depend on the state or territory intestacy laws. In Queensland, the spouse is entitled to the first $150,000 and in New South Wales, just under $470,000.

While the courts may allow the wills to be recognised as valid given the unusual circumstances, the court could decide otherwise. There is enough uncertainty for couples to re-do their wills out of an abundance of caution to avoid the risk.

This article was prepared by Margaret Miller of Bell Legal Group for general information only and it is not legal advice. For legal advice about succession planning contact us on 07 5597 3366 or send an email to law@belllegal.com.au