LawTalk Blog

I am in a same-sex de facto relationship - do I need a Will? 

same sex couple holding hands

A Will is an important legal document that allows you to state how your estate should be distributed following your death, and if you are 18 years or over and have property, you need one, regardless of your personal or family situation.
But having a Will is especially important if you are in a same-sex, de facto relationship. In this situation, if you don’t have a Will, it is quite possible that your partner will not be provided for if you die or will only be provided for following the costly and stressful process of obtaining a Court Order.

What happens if I don’t have a Will and I am in a same-sex de facto relationship?

If you die without a Will, your estate will be distributed according to a list of relatives set out by the government and the result might not be what you wanted.
If you do not have a Will, the first person entitled to claim your estate is your spouse or domestic partner. The problem with this is that if you and your partner are not legally married or your relationship is not registered pursuant to The Relationships Register Act 2016, then your partner will be required to prove you were domestic partners before being able to claim your estate. This can only be done by obtaining a Court Order declaring that you were domestic partners at the time of your death.

How to obtain a Court Order?

Obtaining such a Court Order requires your partner to provide evidence to the Court of your relationship which can be private and personal including: the length of time you were together, whether you were publicly known as a couple and your level of financial dependence on each other.
The onus will be on your partner to establish for the Court that the Order should be made and the process is a time consuming, costly and stressful one at a time that will already be devastating for your partner. The process can become more complex and traumatic if there is any level of conflict between your partner and your family as to the status of your relationship and who should inherit your property, particularly as your parents (followed by your siblings) are next in line to inherit your estate in the event you did not have a spouse, domestic partner or children at the time of your death. 
If the Order is not made by the Court, it is possible that the person you consider to be your life partner, who you would have chosen to benefit in the event of your death will not be provided for. The result could be that your partner is left without the financial means to maintain his or her lifestyle or be forced out of the home you shared together. 

Why it is important to have a Will?

Having a professionally drafted Will allows you to ensure that your partner is provided for if you die. Your Will can be drafted to cover the dynamics of your specific family situation and means the challenging process of obtaining a Court Order can be avoided altogether.
In addition, having a Will also allows you to give your partner the authority to make decisions regarding your burial or cremation, which again, can assist to reduce any conflict or confusion that may arise between family members in the event of your death.  
Do you need a Will? Contact Andersons Solicitors Wills & Estates Team today. 
At Andersons Solicitors, we promote a culture of equality, diversity and acceptance. As a firm, we pride ourselves on dealing with our clients in an open-minded and compassionate manner in what are often very difficult times. If you require any assistance with any sort of legal matter, please do not hesitate to contact one of our offices.

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Get in touch with today's blog writer:
Megan Horsell

Senior Associate in Wills and Estates  and  Commercial Law and Business Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal and South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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