Last updated 1 August 2018
The legal effect of a marriage, a de facto relationship or civil partnership is a matter that should be given real consideration in relation to estate planning issues, and parties to a same-sex relationship should seek and obtain legal advice with respect to estate planning issues in light of the changes to the law.
Married same-sex couples and couples in a de facto relationship or civil partnership can leave property to each other in their will and can appoint each other in a power of attorney or statutory health authority. De facto couples and parties of a civil partnership are considered spouses under laws about wills, which are called intestacy rules. For example, if there is only one surviving spouse, the spouse is entitled to the whole of the residuary estate. If there is more than one surviving spouse, they are entitled to the whole of the residuary estate in accordance with s 36 of the Succession Act 1981 (Qld) (Succession Act) (sch 2 pt 1 Succession Act) (for more information on wills see the Wills and Estates chapter).
Furthermore, under the Succession Act, a person can make an application for maintenance from the estate of a deceased person if they are that deceased person’s spouse. Again, s 5AA of the Succession Act makes it clear that the definition of ‘spouse’ includes parties to a marriage, a de facto relationship or a civil partnership, and that the gender of the party is irrelevant.
In Queensland, the Succession Act provides that a will is automatically revoked by the marriage of the testator (s 14(1)). However, a will that is stated to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator (s 14(3)(a)).