The hardest part of building a life together shouldn’t be defending it after you are gone. Yet, the harsh reality for many LGBTQ+ couples is that an estranged relative who skipped your wedding might suddenly show up at the funeral demanding a financial payout.
At Barker Evans, we’ve helped many clients plan ahead for situations like this. Working with a gay estate planning lawyer can significantly reduce the risk of disputes and strengthen your estate plan.
It helps create a well-structured estate plan that better protects your partner and reflects your wishes.
The “We Are Just Roommates” Trap
Most people assume that quietly writing someone out of a basic will guarantees they get absolutely nothing.
Getting family provision claims explained properly shatters that illusion. In some circumstances, eligible family members may bring a family provision claim against an estate.
Take a moment to let this sink in: A generic will may not adequately address the complexities of blended families, de facto relationships or LGBTQ+ estate planning.
Relying on a generic form means that while your partner is going through the worst grief of their life, they might have to stand in the family court system. In some cases, your partner may need to provide evidence of your relationship during estate proceedings to protect their legal interests and remain in the home you built together.
Locking The Doors On Estranged Relatives
If you are lying awake wondering what happens if my family contests my will in Australia, the answer usually involves a frozen bank account and months of heavy legal stress.
One effective way to strengthen your estate plan is to structure certain assets so they pass outside your estate where appropriate; it is structuring your life so that your biggest assets bypass the will entirely.
In some circumstances, assets that pass outside the estate may be less vulnerable to challenges against the will.
- Structure your property to bypass the estate: Holding your home as joint tenants may allow ownership to pass automatically to the surviving partner outside the estate in many circumstances.
- This is especially vital if you are raising children via NSW surrogacy pathways, ensuring their home environment is never disrupted.
- Draft a clear cohabitation agreement: Utilising a formal Binding Financial Agreement (BFA) may help clarify property ownership and financial arrangements while both partners are alive, which may help clarify ownership arrangements and reduce the potential for future disputes.
- Make your life insurance bulletproof: Nominate binding beneficiaries on your superannuation.
- A valid binding death benefit nomination may allow eligible superannuation benefits to be paid directly to your nominated beneficiary rather than forming part of your estate.
- Register your relationship: A formal NSW relationship registration provides additional evidence of your relationship if it later needs to be established.
- Leave a blunt statement of wishes: Draft a private, supplementary document explicitly stating exactly why certain relatives are getting nothing.
- It may provide useful context if someone later claims they were unintentionally excluded.
Protect your partner’s future with guidance from a dedicated gay estate planning lawyer. Contact Barker Evans to create an estate plan that reflects your wishes and provides greater certainty for the people who matter most.
FAQS
Can a de facto partner be left out of a will?
Yes. A de facto partner can sometimes be left out of a will, but Australian law generally recognises eligible de facto partners as having the right to make a family provision claim if they have not been adequately provided for. Whether a claim succeeds depends on the individual circumstances.
How to prove a de facto relationship after death?
If unsupportive family members try to rewrite your history, your partner needs hard evidence. This means gathering joint bank statements, shared lease agreements, utility bills showing both names, and even text messages or joint travel bookings.
Together, these records help demonstrate the nature of your shared domestic and financial life if your relationship needs to be established during estate proceedings.
Does marriage protect you from a contested will?
Marriage provides clear legal recognition of your relationship, but it does not automatically prevent someone else from bringing a family provision claim. Depending on the circumstances, other eligible people may still challenge the estate.