Same-sex Marriage triggers Estate Planning challenges
With the recent legalisation of same-sex marriage in Australia, it’s likely we’ll see a slew of marriages in 2018! But, be warned! Same-sex couples are urged to review estate planning documents, as marriage can invalidate a binding nomination… in some cases.
While the parties and proposals continue Down Under, same-sex marriage reforms will bring significant benefits to same-sex couples when it comes to both death and medical decisions, as marriage ensures more rights for those legally wed. However, there are still some important estate planning considerations for those looking to tie the knot.
Some super funds include terms that specify a binding death benefit nomination (BDBN) is not actually binding if certain life changes occur.
When members sign a BDBN for most super funds, it will usually be valid for three years; but in the conditions, it can state that it will be invalidated by an event such as marriage or the birth of a child.
Don’t fret! It doesn’t mean that somebody could be automatically cut out. They’d still have a right to apply to the trustee say: ‘I was the nominee before, but now the spouse,’ but that process could open the door for others to come in and argue about why they have some entitlement also, making the process longer and more drawn out than necessary.
While this is mainly noticeable amongst APRA-regulated funds (most large super funds,) there can also be similar clauses in Self-Managed Super Fund (SMSF) Trusts Deeds where wording may suggest a binding death benefit nomination is invalid when a lifestyle change occurs.
SMSF trustees, and all couples looking to wed, will want to make sure all estate planning documents are reviewed and updated where necessary, including Wills, powers of attorney and superannuation nominations.
