Can Same Sex Partners Contest a Will

The number of Australians who identify as gay or lesbian is increasing, according to a new 2015 study conducted by Roy Morgan Research[1].  People who say that they are homosexual has been on the rise since 2008, when 2.4 per cent of the population agreed with the statement: ‘I consider myself a homosexual.’ By 2014 that figure had increased significantly to 3.4 per cent.

However there are more people in gay or lesbian couples in Australia than ever before, same sex marriages performed overseas are not legally recognised here (at the time of writing).  While same sex marriages are not legally recognised in Australia, there are no limitations on same sex couples preparing a will that leaves part or all of their estate to their partner.

What if the Deceased has not Left a Will?

If you die without a will, this is known as ‘Intestacy’.  In most instances, if you die intestate and are in a de facto relationship, your partner will receive all or part of your estate.  This goes for all relationships irrespective of gender combinations.  If there are doubts about the relationship status of two individuals, the Domestic Relationship Register (Victorian Registry of Births, Deaths and Marriages) can come in useful as proof of your relationship.

However in some cases you may not receive what you feel you are entitled to when your partner dies.  This can occur as a result of them dying intestate, or leaving a Will that you feel does not provide adequate provision for you. In these cases, you may be eligible to contest the will.

Can Same Sex Partners Contest a Will?

If you are in a de-facto relationship with the deceased at the time of their death, you are eligible to contest a Will as a same sex partner.

A de-facto relationship is one that is similar to marriage.  A de facto couple is not legally married but their relationship shares the same characteristics as a marriage for example, the couple sharing a home. If you are considered a de facto partner of the deceased, you are not technically their spouse, but will be considered as such in a legal sense.

In some cases, de-facto or same-sex partners do not have to be living together in order to be eligible to contest a will, as the court takes a number of other factors into consideration when determining whether a de facto relationship exists.  Other factors that may be considered include:

  • Financial dependency between the couple, as well as specific monetary arrangements
  • Whether or not a sexual relationship existed
  • If the couple had children to care for and support
  • The public perception of the relationship
  • Whether there was an acknowledgement of mutual commitment to a shared life

Once you have established that you are eligible, you should consider launching your claim to ensure you receive a fair share of the estate. For more information on how to Contest a Will and to gain professional assistance in resolving Will Disputes, get in contact with our expert Estate Lawyers.


[1] http://www.roymorgan.com/findings/6263-exactly-how-many-australians-are-gay-december-2014-201506020136

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