LGBTQIA+ Estate Planning and Disputes

Estate Planning and Dispute Considerations for the LGBTQIA+ Community

Despite the legalisation of same-sex marriage in Australia in 2017, members of the LGBTQIA+ community still face unique challenges in estate planning and disputes.

Discrimination, estrangement, and a lack of awareness about legal rights can result in unfair outcomes, particularly when individuals are excluded from Wills or other financial provisions.

While individuals in the LGBTQIA+ community may not want to think about ‘what if?’ – proactively addressing these issues is critical to ensuring that your intentions are respected, and your loved ones are protected.

Common Challenges in Estate Planning for LGBTQIA+ individuals

LGBTQIA+ individuals often encounter the following obstacles:

1. Dying Intestate (Without a Will)

Over half of Australians don’t have a Will, which is particularly concerning for LGBTQIA+ individuals. Without a valid Will, intestacy laws dictate how an estate is distributed, often disregarding non-traditional relationships.

For example:

• If you are in a de facto relationship, your partner may need to prove the relationship existed to claim a share of your estate. This can lead to disputes with family members who may contest the relationship’s legitimacy.

• In cases of estranged relationships with biological family members, intestacy laws may still prioritise them over chosen family or partners.

Intestacy laws vary by state, making it essential to have a clear and legally binding Will to avoid unnecessary legal battles and ensure your wishes are upheld. Including detailed provisions in your Will can safeguard against disputes and provide peace of mind.

2. Absence of a Superannuation Binding Death Benefit Nomination (BDBN)

Many people mistakenly believe their superannuation and life insurance benefits automatically form part of their estate.

In reality:

• These benefits are controlled by the superannuation fund trustee, who distributes them according to the fund’s rules and relevant legislation.

• Without a valid BDBN, your partner may have to prove their financial dependency or de facto status to claim your superannuation benefits.

If you are in a LGBTQIA+ de facto relationship, without a valid BDBN, your partner may need to prove their financial dependency or de facto status to claim your superannuation benefits.

This process can be time-consuming, stressful, and expensive.

In respect to superannuation claims, your partner will need to prove to your superannuation fund that they were financially dependent on you and that a de facto relationship existed.

BDBNs allow you to nominate specific beneficiaries, ensuring that your intentions are respected. Integrating these nominations into your overall estate plan is crucial to minimise disputes and streamline the administration process.

3. Contesting a Will via Family Provision Applications

Family Provision Applications allow eligible individuals to contest a Will if they have been excluded or inadequately provided for.

LGBTQIA+ individuals, who may experience estrangement or discrimination, are particularly vulnerable to being left out of family Wills.

Key considerations include:

• Eligibility Criteria: In Queensland, eligible claimants include spouses (including de facto partners), children, and dependants. LGBTQIA+ individuals who fall under these categories can make a claim.

• Timelines: In Queensland, a claimant has six months from the date of death to notify the executor of their intent to file and nine months to commence court proceedings. Acting promptly is critical.

It is important to note that eligibility criteria and application timelines vary by state. Failing to act within these timeframes can jeopardise your claim.

Legal advice is essential to navigate these claims and maximise your chances of a successful outcome, particularly in cases involving complex family dynamics or estrangement.

4. Exclusion from a Parent’s Will Due to Sexuality

It is not uncommon for parents to exclude LGBTQIA+ children from their Wills due to strained relationships or disapproval of their sexuality. In some cases, parents may even unintentionally fail to update their Wills after reconciling with their child.

Gender-diverse individuals may experience rejection, estrangement, or discrimination within their families, increasing the likelihood of being excluded from Wills. Family Provision Applications provide a pathway to contest a Will if you believe you have been unfairly excluded or inadequately provided for.

Even if estranged, LGBTQIA+ children can contest a Will under Family Provision laws. Courts consider various factors, including the nature of the relationship, financial need, and any estrangement. Each case is unique, and success depends on presenting a compelling argument supported by evidence.

5. Challenges in Same-Sex De Facto Relationships

The phrase ‘nuclear family’ has traditionally referred to a married heterosexual couple raising their own biological children. Nowadays, more people are living in ‘non-traditional’ families than ever before.

Estate planning for married same-sex and LGBTQIA+ couples is now largely the same as estate planning for any other married couple. But if you are not married to your partner, estate planning should be made a priority.

Surviving partners in same-sex relationships often need to prove the existence of their relationship to claim their rights. Courts assess factors such as shared finances, domestic arrangements, and the level of mutual commitment.

It is important to note that gender is not a relevant consideration in relation to two people living together on a genuine domestic basis. This means that a de facto relationship may include a same sex and gender diverse couples.

To avoid disputes:

• register your relationship where possible; and

• keep detailed documentation, such as joint leases, financial accounts, financial agreements or declarations of commitment.

Without clear documentation or a valid Will, disputes can arise, leading to prolonged legal battles. Taking proactive steps can help establish your status as a de facto partner.

6. Gender Recognition in Legal Documents

Gender-diverse individuals may encounter issues if their gender identity is not reflected in legal documents such as birth certificates or identification. Discrepancies between legal gender and lived identity can create confusion in estate matters, potentially leading to disputes over the validity of Wills or eligibility to claim under intestacy laws.

Recent changes to Births, Deaths and Marriages Registration Act 2003 (Qld) in 2024, now allow individuals to update the gender marker on their birth certificate without undergoing medical or surgical intervention. Individuals can also register relationships that align with their identity.

These changes empower gender-diverse individuals to ensure their legal identity aligns with their lived experience, reducing potential conflicts in estate planning. For example:

• Correct Gender Marker: Ensures accuracy in legal documents like Wills and property titles, avoiding disputes over identity or relationship status.

• Non-Binary Recognition: Prevents misgendering in legal contexts, safeguarding the wishes of individuals who do not identify as exclusively male or female.

Proactive Steps

The financial and emotional consequences of inadequate estate planning for LGBTQIA+ individuals can be devastating.

To protect your rights and those of your loved ones, consider the following:

• Draft a Comprehensive Will: Ensure your wishes are clear and legally binding. A Will minimises the risk of disputes and ensures your assets are distributed according to your intentions. Proactively updating Wills and beneficiary nominations ensures clarity and prevents unnecessary challenges.

• Establish a Superannuation BDBN: Secure your superannuation and life insurance benefits for your chosen beneficiaries. Ensure these nominations are valid and up-to-date, integrating them with your broader estate plan.

• Document Your Relationships: Keep evidence of your relationship status, including shared financial accounts, leases, and other agreements, to avoid disputes. Registration of relationships or formal agreements can simplify claims and protect your partner’s rights.

• Seek Professional Advice: An experienced estate planning lawyer can help you navigate complex legal requirements and ensure your intentions are respected. Tailored advice your unique personal circumstances, ensures your intentions are respected and helps prevent unnecessary disputes.

How FC Lawyers can help

At FC Lawyers, we understand the unique challenges faced by the LGBTQIA+ community in estate planning and disputes. Our empathetic and skilled team specialises in succession law and is dedicated to providing tailored advice to safeguard your rights and protect your loved ones.

If you identify as an individual in the LGBTQIA+ community, please feel free contact us to discuss your estate planning needs with us for support, guidance, and peace of mind. 

See also