Same Sex partners and Intestacy

Marco Bulmer-Rizzi married his husband David in London in June of last year. Last month David died after falling down stairs and cracking his skull at a friend’s home during the couple’s honeymoon in Adelaide.

The State of South Australia doesn’t recognize same sex marriages solemnized in other jurisdictions. As a result David’s death certificate read “never married” and Marco was not recognized as next of kin meaning he couldn’t make decisions surrounding his husband’s funeral.

David’s father had to make those decisions. He was quoted that the South Australian law was

“[It’s] degrading. It demeans my son’s memory and denies their relationship. It’s cast them as second-class citizens.”

 Naturally Marco felt disrespected by the South Australian Law and was quoted as saying under the current Australian law

“I’m nothing.”

After intervention by the British High Commission in Australia the South Australian Premier Jay Weatherill apologized to Marco and hopes to have David’s death certificate reprinted to acknowledge his marital status. Further he pledged to introduce laws recognising same-sex marriages performed overseas.

Interestingly in all Australian Jurisdictions if a person in a de facto relationship dies without a Will  the Intestacy rules define de facto relationships broadly as being  between 2 persons who live together in a marriage like relationship.

However under South Australian law the same sex partner of a person dying intestate must apply to the Court for a declaration that they met the requirements of a domestic partner as defined by State law.

In a recent case, Stewart Handfield, died in November 2008 aged 81. He had prepared a Will using a “will kit”. The document appointed Frank Kerstens, Stewart’s partner of almost 35 years, as executor and sole beneficiary. The document had some inconsistencies and therefore the Court had to decide if it was a valid Will under South Australian Law.

Frank gave evidence that he and Stewart had lived as domestic partners almost continuously for thirty-five years. They had shared five or six residences, which were bought and registered in Stewarts name, and, lived together on a genuine domestic basis, with Frank providing care and support to Stewart, as he grew older and more frail.

The Court recognised the document as Stewart’s Will but stated that if the document had been found to not be a valid Will Frank and Stewart’s relationship would meet the definition of a domestic partnership under the Family Relationships Act due to

  • their common residence over 35 years;
  • their financial and other interdependence;
  • the ownership and domestic arrangements of their property;
  • and the mutual commitment to a shared life over a long period.

It is important that you plan for your future and making a valid Will is the only way to ensure that your estate – regardless of its size- is distributed the way that you want it to. So today is the best time to put that plan into action.

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