In 2017 the right to marry in Australia was no longer determined by sex or gender. However although marriage equality was achieved, there are still many circumstances in which the LGBTQIA+ community continues to experience unique challenges from a legal perspective.

Whilst the situations may vary in nature, in general, issues that involve ensuring an individual’s wishes are met both toward the end of their life and afterwards can often be complex, costly and stressful if not planned and documented ahead of time.

Many LGBTQIA+ individuals continue to face discrimination or estrangement from their family. In these cases, the family is quite often unaware of any de-facto relationships that may exist until after an individual has lost capacity or passes away, culminating in disputes over important decisions, assets, and funeral arrangements, with such disputes made more complex in the absence of a will.

Given the unique legal hurdles that many LGBTQIA+ community members face, it is imperative to proactively plan for the future in order to ensure that personal and financial matters are managed in accordance with one’s wishes. This can be done via wills, powers of attorney and enduring guardianship.

The Will

It’s estimated that over 50% of Australians do not have a will and pass away intestate. This means that when it comes to determining who acquires their assets and valuables, their wishes are undocumented and therefore not taken into consideration.

In the case of a de-facto relationship, the surviving partner may be entitled to a significant portion of the deceased estate. However, a unique challenge of same-sex de-facto relationships occurs when death, estrangement and the absence of a will intersect.

In NSW, when a person dies intestate without issue or spouse, other relatives may inherit according to a legislated order of succession, which is as follows:

parents of the deceased > siblings > nephews and nieces > grandparents, uncles and aunts > cousins.

If no eligible relation is identified, the assets of the deceased estate are inherited by the state.

LGBTQIA+ individuals who do not have a will nor a spouse, de-facto partner or children, will have their estate split equally between their surviving parents and other family members, in accordance with the order outlined in the box. However for those who want to choose how their assets are distributed, or want to leave gifts or donate, having a will is nothing less than essential.

One of the most common misconceptions about superannuation is that it is part of your overall estate upon death; however, this is simply not the case.

To determine who will receive your super in the event of death, it’s important to have an up-to-date Binding Death Nomination. This is a form that outlines which dependants or personal legal representative will receive your super upon your passing.

If no nomination is in place at the time of death, the trustee of the super fund will determine the person(s) they believe most appropriate to receive the funds pursuant to their Deed and the Superannuation Industry Supervision Act 1993 (Cth).

The Decision Maker

Even though we are all living longer, it’s important to prepare for the inevitabilities of getting older or sick and potentially losing our ability to function independently from a physical or mental capacity.

Choosing the decision maker who will help manage our financial and personal affairs during these times can undoubtedly be a difficult decision. Whilst the decision may be clear for married couples as they are legally recognised as each other’s next of kin, it is not as clear-cut for those in de-facto relationships.

Perhaps an individual may not have family members who respect their de-facto partner as their chosen decision maker and want to get involved, or maybe an individual who is estranged from their family prefers to have a friend as their trusted decision maker.

Regardless of the reason why, the most important thing to do is document and put in place the following two documents to ensure you are taken care of, in accordance with your wishes.

  1. Enduring Power of Attorney. This document focuses on who will have the power to make decisions regarding your financial affairs and to sign all the necessary documents to fulfil that role.
  2. Enduring Power of Guardianship. This document determines who will have the power to make decisions regarding your health and wellbeing and covers issues such as housing and medical decisions.

Regardless of relationship status, having these two documents will help to ensure your end of life is managed with the support of someone you can trust and in accordance with your wishes.

Family Provisions Applications

If a de-facto partner dies without a will, or there are insufficient provisions due to any of the aforementioned issues, the remaining partner may file a Family Provision Application against the estate.

A Family Provision Application is a process that allows certain individuals to contest a Will for a share or larger share from the estate of the deceased person on the basis that the person contesting the Will has been left without adequate provision for proper maintenance and support.

Only particular individuals can file a Family Provision Application, including: immediate family members, a former husband or wife or a de-facto partner.

In New South Wales, there is an additional category for eligibility under which a LGBTQIA+ person can contest a will if they were at any particular time, wholly or partly dependent upon the deceased at the time of their death, or a member of the household of which the deceased person was a member.

Whilst the recognition of de-facto relationships is not based on, or affected by, gender, the surviving partner must first establish that they meet the definition of a de-facto partner. In addition, whilst a domestic partner falls within the class of people who can make a challenge to the will, the standing alone does not guarantee success.

When assessing applications, the courts take several factors into consideration such as the terms of the Will, the relationship between the deceased and individual challenging, the beneficiaries of the Will and their relationship with the deceased, the financial circumstances of the person challenging and the beneficiaries and the size of the estate.

Case Study: Burton v Moss [2010] NSWSC 163
This 2010 example highlights the potential outcome for LGBTQIA+ individuals who contest a Will. Here the applicant successfully established that he was in a de-facto relationship with the deceased at the time of his death and therefore was eligible to claim against the estate. He argued that he was left without adequate provision for his proper maintenance and support. The Court outcome saw the applicant receive the majority share of the estate and his costs.

The process of estate planning does not need to be complex but can help prevent expensive and heartbreaking litigation in the future for those left behind.

If you have any questions or would like to find out more about how estate planning can benefit you and your loved ones, feel free to contact us at Antcliffe Scott, we’d be more than happy to help.