Getting married is a joyous time. However, if you are one of the 20 per cent of Australians who will do so for a second, or more time, children from a previous marriage can present complex estate planning challenges.
Many Australians don’t realise that in most cases, marriage revokes a will (from August 2017 this also includes registering your relationship in South Australia under the Relationships Register Act 2016). For blended families in particular, this means family disagreements over how assets are distribution can be common.
To make sure your hard-earned assets are not eroded by legal fees to defend disputes here are some things to keep in mind. Estates are governed by state law, and any specific references to law below are based on South Australian law at this time.
Without a Will
In the happiness of getting married it’s easy to overlook that your Will needs to be updated to reflect your relationship change. Not doing so means if you die without a valid will, your estate could be dealt with under the intestacy laws, where the government, not you, decide how your estate should be distributed.
The family home
Generally, as joint tenants, the family home will transfer to the surviving spouse. Changing home ownership to tenants-in-common however, means each has a fixed interest in the property that can be dealt with in each of their separate wills.
Being tenants-in-common provides an option for the surviving spouse to retain a right of residence for their interest in the property. This means that the survivor will be able to remain in the property for the duration of their lifetime.
Many people don’t realise that they don’t own their super. Instead it is owned by trustee of the super fund and held on your behalf. That means that if you die, it doesn’t automatically go to your estate. Instead the trustee will decide where the money should go.
To ensure that your super goes where you want it to, put in place a binding death nomination. This will, in a legally binding way, tell the trustee what you want to happen with your super if you die.
Self-managed super funds (SMSFs) have become very popular in Australia, and this type of super fund will be a consideration for many estate plans. One consideration is moving from an SMSF to a small APRA fund (SAF). The difference between these two types of funds is the trustee structure. In an SMSF, the members of the fund are also the trustees of the fund. In a SAF, the services of a professional trustee company are employed. So, in the event that there are family disputes, the use of a professional independent trustee protects the wishes of the deceased.
A testamentary discretionary trust is activated only on death and provides a trustee the discretion to distribute assets between the beneficiaries nominated in your will. As the assets are not legally owned by the beneficiaries, there is a greater level of protection from legal proceedings arising from marriage breakdown or bankruptcy.
You don’t need to remarry
In many circumstances it isn’t necessary to be married before a partner is entitled to a share of your estate. Depending on where you live this could as little as two years of continuously living together.
In South Australia a de-facto relationship needs to have existed for three years for a partner to be considered in the areas of law including inadequate provision in a will, or where there is no will.
If it all just doesn’t work out, getting divorced (including revoking a registered relationship in South Australia), also affects your will. In South Australia a divorce will not invalidate your will; the only aspects of your will that will be revoked is the nomination of your former spouse as executor, or the inclusion of them as a beneficiary. If there is a breakdown of a relationship where a couple is not married or registered, there is no effect on the validity of a will.
Don’t leave it up to chance, and remember to plan for the unexpected.