Inheriting a better deal

New inheritance laws and increasingly progressive views of gay relationships have not stopped some families from trying to block a same-sex partner from claiming part of their deceased partner’s estate or superannuation.

Prejudice and greed were strong motives to deny the existence of a family member’s same-sex relationship one law expert told the Sydney Star Observer, based on his recent cases in Sydney.

Ian Cheney from Turner Freeman Lawyers said same-sex partners are at a disadvantage compared to de facto or married couples even with succession laws updated late last year.

They still had to prove their dependence and people sometimes didn’t know their rights.

Having a will isn’t enough. It is important to make clear why you want to leave a share of your estate to your partner. Will challenges have risen as the value of estates have risen, in part due to the property boom, he said.

The more money there is the more incentive there is for people to consider what their rights
are.

Disinheriting a same-sex partner can be as simple as claiming the couple were just flatmates, as one family did recently.

The saving grace for that case were statutory declarations the couple had written for another legal matter just before one of them died, Cheney said.

We also had cards, Christmas cards, birthday cards, and a wedding invitation [from the family to the couple]. All these were clear indications of the true nature of their relationship, Cheney said.

They even mentioned that he had a girlfriend 25 years ago after he left high school -” that was supposed to be evidence.

The risk of assuming supportive gay-friendly in-laws will remain so when the time comes to divide the estate can mean the surviving partner losing the marital home.

Cheney recommended couples write statutory declarations when updating their wills and superannuation nomination.

If you’re in a same-sex domestic relationship doing a two-page stat dec could save thousands and thousands of dollars, he said. It’s better to do more than just make a will.

A registered relationship in Victoria, Tasmania or the ACT could help too because it will make clear the nature of the relationship.

The stereotypical short-term Arq romance can be viewed as less important by the gay community, but if a surviving partner lived with the deceased on a genuine domestic basis they are still entitled to make a claim, Cheney said.

Cheney is aware of one de facto relationship that had the blessing of the partner’s parent while the son was alive, but the situation soured after their short live-in relationship was cut short by death. The surviving partner signed documents given to him by the parent and is still fighting to be considered.

Having lost a partner and deeply in interdependent with the man he loved to whom he was totally devoted to his career, he had no-one, Cheney said.

Discrimination and prejudice were slowly disappearing . Very often it was the gay person’s own parents or siblings who were the most likely to fight a same-sex de facto partner, Cheney said.