Polyamory and Estate Planning: What You Need to Know
If you have more than one spouse, estate planning can involve some additional considerations.
Your relationships might include one married spouse and one or more de facto spouses, or multiple de facto relationships. You may have children, shared property, separate property, joint finances, or different financial arrangements with each person.
There is no standard estate plan that works for every polyamorous family.
Your estate plan needs to reflect your relationships, your assets, your responsibilities, and the people you want to protect.
This blog provides a general overview of some of the estate planning issues that may arise when you have more than one spouse in Queensland.
Why estate planning matters in a polyamorous relationship
An estate plan deals with two significant events:
your death, and
loss of capacity, when you can no longer make decisions for yourself.
When you have more than one spouse, there may be more people whose financial security, care, and interests need to be considered.
For example, you may need to think about:
who you want to inherit your assets
where your partners will live if you die
how your children will be provided for
who will make decisions for you if you lose capacity
who will manage your estate after your death
who should make decisions about your funeral
how your superannuation and life insurance should be dealt with
whether any of your beneficiaries need additional protection
how your estate plan could affect your partners and children in the future.
These decisions need to be considered together. Changing one part of your estate plan can affect another.
What is a “spouse” in Queensland?
The word “spouse” can mean more than a husband or wife.
For Queensland succession law, a spouse can include a person who is a de facto partner and meets the relevant legal requirements. Queensland law also specifically provides for circumstances where a deceased person has more than one spouse who is entitled to an intestate estate.
This is important for people in polyamorous relationships.
A person does not necessarily lose their status as a de facto partner simply because their partner is also married to someone else or has another de facto relationship. Queensland legislation recognises that a de facto relationship can exist even where a person is legally married or in another de facto relationship.
Whether someone is legally your spouse or de facto partner depends on the circumstances and the relevant legal requirements. That makes personalised legal advice particularly important when your family structure does not fit a traditional two-person relationship.
What happens if you die without a Will?
If you die without a Will, you die intestate. Your estate is then distributed according to the intestacy provisions in Queensland's Succession Act 1981.
The legislation specifically deals with situations where more than one spouse is entitled to an intestate estate. Depending on the circumstances, the spouses' entitlement can be dealt with through a distribution agreement, a Court-ordered distribution, or equal distribution in circumstances where the statutory requirements are met.
That is a very different process from deliberately deciding what you want to happen to your estate.
Why does this matter?
Imagine you have two long-term partners, Alex and Sam, and children from one or both relationships.
You might want:
both partners to have financial security
one partner to remain living in your home
particular assets to pass to your children
your children to receive their inheritance at a later stage
different partners to receive different types or proportions of assets
someone independent to manage assets for your children.
The intestacy provisions are not designed around your individual family arrangements and personal wishes.
A Will gives you the opportunity to create a plan that is deliberately structured around your circumstances.
Your relationships need to be part of the estate planning conversation
One of the first things we need to understand when preparing an estate plan is who is important to you and what your relationships look like.
That might include:
your spouses and partners
your children
your partners' children
former partners
parents and other family members
people who depend on you financially
people who live with you
people who have an important role in your life.
We also need to understand the dynamics between those people.
For example:
Are all of your partners know each other? Do they get along?
Do you share a home?
Does one partner depend on you financially?
Do you have children with one or more partners?
Do your partners have children from other relationships?
Do you own property together?
Are some assets intended to benefit one particular partner?
Are there people you want to provide for without giving them control over your assets?
These conversations help your lawyer understand what your estate plan needs to achieve.
Property ownership matters
Property ownership can become particularly important when you have multiple partners.
For example, you might own:
your home with one partner
an investment property with another partner
property in your sole name
shares or investments jointly with someone else
assets through a company or trust.
The way an asset is owned can affect what happens to it when you die.
This means we need to look at how your assets are actually owned, rather than simply making a list of what you own.
Your estate plan should consider your Will alongside the ownership structure of your assets.
Who should inherit?
There is no universal answer.
You might want your estate divided equally between your partners. You might want different partners to receive different gifts. You might want to provide for your children first. You might want a partner to have the right to live in your home while preserving the underlying value for your children. You might want assets to be held in a trust rather than given directly to a beneficiary. You might also want to provide for someone who is financially dependent on you without giving them outright ownership of a significant asset.
These are estate planning decisions, not simply questions about who gets what.
The right structure depends on your circumstances and what you are trying to achieve.
What about your children?
Children add another layer to the estate planning conversation.
You may have children with one partner, children with multiple partners, stepchildren, or children who have different relationships with your partners.
You may need to consider:
who will care for your children if you die
who will make decisions about their upbringing
who will manage their inheritance
when they should receive their inheritance
whether their inheritance should be protected through a trust
whether your partners' children should receive anything from your estate
whether there is a risk of future family provision claims.
If you have children under 18, your Will can also deal with testamentary guardianship.
The right arrangement will depend on your family circumstances, including the role of the child's other parent or parents.
Who will make decisions if you lose capacity?
Your estate plan is not just about what happens when you die. You also need to think about what happens if you are alive but unable to make decisions for yourself.
An Enduring Power of Attorney (EPA) allows you to appoint people you trust to make financial and personal, including health, decisions for you if you lose decision-making capacity. With multiple partners, this raises some important questions.
For example:
Do you want one partner to make decisions for you?
Do you want two or more people involved?
Should different people have different responsibilities?
Should decisions be made jointly or separately?
Who would you trust to make decisions about your finances?
Who would you trust to make decisions about your healthcare?
What happens if your partners disagree?
These arrangements need to be carefully considered when your EPA is prepared.
Who will manage your estate?
Your executor is the person responsible for administering your estate after your death. Choosing an executor can be particularly important where there are multiple partners or complex family relationships.
You may want to appoint:
one of your partners
more than one executor
an independent person
a professional executor
someone who is not a beneficiary of your estate.
There is no requirement that your executor be one of your partners.
The important question is who you trust to administer your estate properly, understand their legal obligations, and deal with potentially competing interests.
What about superannuation and life insurance?
Your superannuation does not automatically form part of your estate.
Superannuation death benefits can be dealt with separately from your Will, and there are restrictions on who can receive a superannuation death benefit.
This is especially important where you have multiple spouses because your estate plan needs to consider who should receive your superannuation and how that nomination fits with the rest of your plan.
Life insurance also needs to be considered as part of the overall strategy.
Your lawyer can help you consider how your superannuation, life insurance, Will, trusts, and asset ownership arrangements work together.
Could your estate plan be challenged?
Like any estate plan, a Will made by someone in a polyamorous relationship needs to consider the possibility of future claims against the estate.
The people who may have rights to make a claim depend on the circumstances and the relevant Queensland legislation.
This is one reason why it is important to explain your circumstances fully to your estate planning lawyer. A good estate plan should consider not only what you want to happen, but also the circumstances that could create difficulties after your death.
That might include documenting your intentions, choosing appropriate structures, considering asset protection, and making sure your Will works with the rest of your estate plan.
Communication can be an important part of your estate plan
You do not have to tell everyone every detail of your estate plan. There may, however, be circumstances where communication with your partners or family members can help avoid confusion later.
For example, you may want the people closest to you to understand:
who your executor is
who your attorneys are
where your important documents are stored
what your broad wishes are
who should be contacted if you become seriously ill
what your funeral wishes are.
A Letter of Wishes can also provide additional guidance about matters that are important to you without putting every detail into your Will.
There is no “standard” polyamorous estate plan
This is probably the most important thing to take away. Your estate plan does not need to fit a traditional family structure. It needs to fit your family.
For some people, that might mean a straightforward Will with carefully considered beneficiary nominations. For others, it might involve testamentary trusts, life interests, specific gifts, asset protection strategies, tailored decision-making arrangements, or a combination of different structures.
The right approach depends on your relationships, assets, children, financial arrangements, and goals.
Start with the people, then build the plan
If you are in a polyamorous relationship, your estate planning conversation may look a little different from the conversation someone in a more traditional family structure might have. That is okay. The starting point is understanding your family as it actually exists.
Who are the people you love?
Who depends on you?
Who do you want to protect?
What do you own, and how is it owned?
Who should make decisions for you if you cannot?
What do you want to happen when you die?
Once those questions are understood, your lawyer can help you explore the legal structures available to achieve your goals.
Your relationships are unique. Your estate plan can be, too.
If you have more than one spouse or partner and want to talk about how your relationships, assets, children, and wishes could be reflected in your estate plan, book a consultation with Sun Wills & Estates.
This blog provides general information about Queensland estate planning and is not legal advice. Estate planning for people in polyamorous or other complex family arrangements requires advice based on your individual circumstances.