Marriage: How “Tying the Knot” could undo your Estate Planning

In the last year or so, how many of your family, friends, clients, colleagues or acquaintances have got married? And of those newlyweds, was reviewing their estate planning at the forefront of their minds, as something they should attend to before or soon after the nuptials?  Would they be aware that the act of getting married could drastically affect what happens to their estate if they die?

Some recent statistics on Marriage

The Australian Bureau of Statistics (ABS) reported in November 2018, that there were a total of 112,954 marriages registered in Australia in 2017, with 30,129 of these being registered in Victoria. The figures from previous years are around the same, give or take a few thousand.

However, the total number of marriages taking place each year could be expected to increase in the future, now that marriage is no longer limited to heterosexual couples. In just the first six months after the amendment in December 2017 to the Marriage Act 1961 (Cth), allowing marriage between two persons regardless of their gender, the ABS reported that 3,149 same-sex marriages took place across Australia. 

What could this mean?

Subclause 13(1) of the Wills Act (Vic) 1997 (“the Wills Act) states that marriage revokes a Will, the entire Will. This could mean that the minute they “tie the knot”, over 224,000 people each year (regardless of their gender) could be joining the ranks of those in Australia who don’t have a valid Will in place.

One exception in the Wills Act is that, a marriage that was contemplated in the Will does not revoke the Will. This gives couples the chance to plan well in advance.

There are some further exceptions in the Wills Act, including that if you make a gift to someone to whom you are not married to at the time of making your Will or appoint them as your executor, the gift or appointment will not be revoked if you are married to that same person at the date of your death.

However, unless the Will is made in contemplation of marriage, all gifts to any other people or appointments of other people as the executor will instantly be revoked by the marriage.

If a person either dies without a valid Will in place or their Will does not dispose of their entire estate, the assets not effectively dealt with become subject to the “intestacy rules” in the Administration and Probate Act (Vic) 1958. The intestacy rules set out who receives the estate of someone who dies without a valid Will.

Where a Will has been revoked due to marriage, this could mean that loved ones such as children from the relationship or other family members or friends, could miss out entirely on an intended gift.

Whilst children from a previous relationship may still receive some benefit under the intestacy rules, it could be far less (or perhaps far greater) than what was intended.

What to do?

The happy couple should preferably consult an estate planner and a wedding planner at the same time. If this doesn’t happen, they should take steps to ensure that they have a valid Will in place as soon as possible after the marriage.

How we can help

We have specialised estate planning lawyers who can advise and assist anyone who has recently married or is preparing to marry.  Please do not hesitate to contact us.