Having your parents and your partner fighting over your dead body is a particularly grim scenario, but one that some in the gay, lesbian, bisexual and transgender (LGBT) community may face. This situation isn’t limited to the LGBT community – our choice in love interest is often poor so far as our parents are concerned – however if you want to make it less difficult in the event of your death, prepare for it in no uncertain terms. Lawyer Vanessa Ash can see you and your partner, and family, safely through to the other side of a death.
You need a Will and you need a plan because the law, your family and perhaps even your partner may not always be on your side.
Keep in mind that the executor can essentially do as they wish, overriding your Will, with disputes being referred to the Supreme Court and fees payable by the disputers. Who is your Will executor?
The story with a sad, sad ending
There was a documentary made in 2013 about Tom and Shane, a gay couple living in California. To cut a long and heartbreaking story short, Tom died suddenly, leaving Shane to deal with Tom’s unaccepting family who proceeded to not only make him pay to transport Tom’s body and his funeral, but completely omitted him from Tom’s funeral and memorial. Tom’s family then took Tom’s belongings from the couple’s shared home and money from his bank account.
The couple had been living together happily for over six years when this happened, and they had no legal documentation for anything. As far as the law was concerned, they may as well have been roommates, and Shane’s only avenue was a long, costly legal fight with his partner in life and love’s parents.
Since 2002, same-sex relationships were granted the same status as hetersexual de facto relationships in Victoria, and now the term ‘domestic relationship’ is used as a blanket coverall for any relationship between two people where they live together and share a life. This removes some of the legal discrimination same-sex couples face, bringing the relationship further into line with the rights that hetersexual unmarried couples enjoy as default.
Domestic Relationship: a person to whom the person is not married but with whom the person is living as a couple in a genuine domestic basis irrespective of gender.
As of 2008 (under the Relationships Act 2008) a relationship can become legally recognised via the Relationship Register. Couples can enter a relationship agreement and this enables the application for maintenance and property claims in the event of a relationship breakdown (as of 2 March 2009).
A domestic relationship doesn’t have to be registered to be recognised, as in a dispute, a court oversees the situation on a case-by-case basis. This takes into account the couple’s living situation, length of the relationship, sexual relationship, financial interdependence, use and ownership of property, care and support of any children, and what the relationship means to those around the couple.
Changes were also made regarding assisted reproduction and same-sex couples to remove discrimination and create safety for parents. Marriage is still unavailable, but legally things have changed significantly.
Inheritances
Children of same-sex couples (who are under law considered to be the child’s parents or legal guardians), have the same inheritance structure as everyone else, but it is important to ensure all legal avenues are investigated regarding the child’s father status. A donor may not have any legal rights, but if the father is a friend of the family, a sibling of one of the parents or other closer person, it is important that the legal circumstances of the child are laid down in stone. A family provisions claim may be made.
Problems can quickly arise with the many and varied mixed families that we now have so it is critical to seek legal and financial advice as often as is required to keep yourselves protected under all circumstances, as laws and regulations change without notice.
Property Law
Property law is now in line with heterosexual couples, so a domestic partner can take possession of a deceased partner’s superannuation, inheritance, and property. The Family Court deals with these issues as it would heterosexual couples and their families, and takes into consideration financial and non-financial, direct and indirect contributions each partner makes.
Write your own story. Call Vanessa Ash and Associates today.