In 2017, Australia joined over 30 countries in recognising same-sex marriage. This monumental step didn’t just mark a social and cultural shift—it also transformed the legal landscape, especially in the area of wills and estate planning. As marriage laws changed, so too did inheritance rights, bringing new responsibilities and risks for same-sex couples.
Today, with thousands of same-sex couples having legally tied the knot, many are now re-evaluating their estate plans. If you’re married or plan to marry a same-sex partner, it’s critical to understand how these changes affect your legal rights. In this article, we’ll unpack the details of same-sex marriage inheritance rights in Australia—including how wills are impacted, what happens if you don’t update your estate documents, and how to protect your loved ones.
Why Same-Sex Marriage Inheritance Rights in Australia Matter Now?
According to the Australian Bureau of Statistics, more than 23,000 same-sex couples have married since the Marriage Amendment (Definition and Religious Freedoms) Act 2017 took effect. While marriage is a celebration of love, it also comes with serious legal consequences—especially around wills, superannuation, and asset distribution.
For Australians aged 45–70, this is especially relevant. Many in this age group have existing wills created during long-term de facto relationships or before marriage equality was legally recognised. These documents may now be outdated—or worse, legally invalid.
This makes understanding same-sex marriage inheritance rights in Australia not just important, but urgent.
How Same-Sex Marriage Affects Wills in Australia?
One of the most critical impacts of same-sex marriage is on the legal standing of wills. In Australia, marriage automatically revokes a previously made will—unless that will explicitly states it was made “in contemplation of marriage.” This rule now applies equally to heterosexual and same-sex couples.
Does Marriage Revoke a Will in Australia?
Yes. Under legislation such as the Wills Act 1997 (VIC) and equivalent laws in other states and territories, marriage invalidates any prior will unless it's made with clear reference to an upcoming marriage. This means that if you got married after 2017 but haven't updated your will, your estate could be at risk of being distributed under intestacy laws.
For same-sex couples who wrote wills during de facto relationships—some spanning decades—this legal technicality can have devastating effects.
Updating a Will After Same-Sex Marriage: Why It’s Essential
Failing to update your will can lead to:
- Unintended exclusion of your spouse
- Outdated beneficiaries, such as ex-partners or estranged relatives
- Disputes among family members, particularly if children from previous relationships are involved
Creating a new will post-marriage is the safest way to ensure your assets go where you want them to.
Pro tip: It’s not just about distributing assets. A well-drafted will should also cover guardianship of minors, your preferences for medical care, and funeral wishes.
Estate Planning for Same-Sex Couples: The Modern Checklist
For same-sex couples, estate planning involves more than drafting a will. Here's a comprehensive checklist to ensure full protection of your partner and family:
1. Superannuation Nominations
Superannuation is not automatically part of your estate. Make sure your same-sex spouse is listed as your binding death benefit nominee.
2. Power of Attorney and Medical Directive
Assign your partner as your enduring power of attorney and medical decision-maker to ensure they have authority if you’re incapacitated.
3. Testamentary Trusts
These trusts offer asset protection and tax advantages, particularly when children from previous relationships are involved.
4. Guardianship of Children
If you and your partner are raising children (biological, adopted, or from previous relationships), your will should clearly state who will take guardianship.
What Happens If You Don’t Update Your Will?
The consequences of not updating your will post-marriage can be severe. In the worst-case scenario, your estate could be distributed under intestacy laws, which may not reflect your wishes.
Potential outcomes include:
- Your same-sex spouse may need to legally contest the estate.
- Estranged relatives could be granted portions of the estate.
- Your surviving spouse may be forced to sell jointly owned property to satisfy claims.
- Children from a previous relationship may be unintentionally disinherited.
Same-sex marriage inheritance rights in Australia provide equal protection—but only when estate planning is kept up to date.
Same-Sex Couples and Children: Who Inherits What?
Same-sex couples often bring children from prior relationships into the family dynamic. Inheritance issues can become emotionally and legally complex without clear documentation.
To safeguard children's interests:
- Name each child clearly in your will.
- Specify their entitlements, especially if stepchildren are involved.
- Use testamentary trusts to provide ongoing support without causing intra-family disputes.
Blended families often experience contested wills. But careful estate planning can prevent future legal battles while honouring everyone’s role in your life.
Family Provision Claims and Legal Disputes
Even with a valid will, family members (including children, former spouses, and sometimes even stepchildren) can make Family Provision Claims. These are applications to the court seeking a greater share of the estate.
Same-sex partners are now fully recognised as eligible applicants, meaning they can contest a will under the same rules as heterosexual spouses if they feel inadequately provided for.
Courts consider factors such as:
- Length and nature of the relationship
- Financial dependency
- The moral obligation of the deceased
Understanding same-sex marriage inheritance rights in Australia includes knowing when and how such claims can arise.
Legal Equality Doesn’t Mean Automatic Protection
Marriage equality in Australia means that same-sex couples now have the same legal rights and responsibilities as opposite-sex couples. But those rights must be exercised intentionally through proactive estate planning.
Some Australians mistakenly believe that legal recognition alone protects their partner's inheritance. In reality, this assumption can lead to painful consequences.
For example:
- A partner left out of a pre-marriage will may be treated as though they weren’t a spouse at all—unless legal documents are updated.
- Unresolved ownership of shared property can lead to costly disputes or court battles.
Same-Sex Marriage Inheritance Rights Australia: Key Takeaways
To summarise what you need to know:
- Marriage revokes previous wills. This applies equally to same-sex and opposite-sex couples.
- Update your will immediately after marriage to ensure your partner is protected.
- Estate planning for same-sex couples should cover superannuation, power of attorney, guardianship, and testamentary trusts.
- Without updated legal documents, your loved ones may be left vulnerable to legal disputes, disinheritance, or financial hardship.
- Same-sex marriage inheritance rights in Australia offer equality—but only if you put the right plans in place.
Final Thoughts: Protect What Matters with Legal Finda
The legal recognition of same-sex marriage has brought long-overdue equality. But it has also introduced legal consequences that many people still don’t fully understand.
Whether you’re in a long-standing relationship or newly married, taking control of your estate planning is the best way to protect your partner, children, and legacy.
At Legal Finda, we specialise in helping LGBTQIA+ Australians create legally sound wills and navigate the complexities of inheritance law. Our expert estate planning lawyers ensure that your intentions are documented and legally enforceable—so you can live with peace of mind.
Contact Legal Finda today to explore your rights, update your will, and secure your family’s future with confidence.
