In most cases, a legal marriage will nullify, or at least substantially vary, a pre-existing will. This is the case unless the will specifically anticipates a coming marriage. So, if you are contemplating a marriage, or you have had a marriage and have a will that pre-dates that marriage, you need to get yourself a new will.

The Family Law Act assumes that a surviving husband or wife will generally inherit assets from their deceased partner in the absence of a document directing otherwise. A valid Will can be such a document. Therefore, when people become married they should re-write their will if they do not wish for their new spouse to inherit some or all of their assets.

In our experience, this is particularly important when one or both people getting married have children from outside of that particular relationship.

As with most things, the situation is more complicated for de facto couples. Usually, members of a couple can also have claims on a deceased partner’s assets even if that claim is inconsistent with the deceased persons will. Put simply, while a deceased person may have a will that leaves nothing to their de facto partner, that partner can still make a legal claim on the estate. How they make this claim varies from state to state. In addition, extent the which the courts uphold any such claim will vary on the specific facts of the case.

Superannuation

In most cases, money held in super is not automatically part of your estate and is not subject to your will. This is because of a technical aspect of the superannuation system: money held in super is legally owned by the trustee/s of the fund, who must manage that money for the benefit of the fund member. So, in strictness, it is the surviving trustees of the fund who decide what to do with your super when you die.

In general, the trustees will pay the benefits to people who are your financial dependants or to your estate. ‘Financial dependants’ are specifically defined and include your spouse and children up to a certain age, regardless of whether they are actually dependant on you financially. This is one of those interesting responsibilities assumed into marriage: your husband or wife is always regarded as your financial dependent when it comes to superannuation. This is the case both for legal marriage and for de facto marriage.

While trustees have discretion as to who they pay benefits to, members of the fund can remove this discretion by creating a binding death benefit nomination. Binding death benefit nominations can only be made in favour of a limited list of people. Again, these include your spouse and your children. The list also includes the executor of your will, in which case your superannuation benefits would presumably then be distributed according to the terms of your will. You can also make a binding death benefit nomination in favour of any person in an interdependent relationship with you.

Bear in mind that a person can be in an interdependent relationship with someone who is not their legal spouse. While a person cannot be legally married to more than one person, they can have an interdependent relationship with more than one person.

In summary, if you are getting married, either legally or de facto, and you want some or all of your assets to go to someone other than your partner when you die, you should get specific legal advice about writing a new will before you get married. If you don’t already have a good lawyer, let us know and we can introduce you to one.