The recent news update that Australia now allows individuals to access multiple gender options for their passport, sparked a question in me. Why is the UK not following the same path?
Not only was I perplexed that a nation such as ours would not already have this system in place, but I found myself delving into how an individual should be addressed. I understood the basics for cis-gender individuals, but when truly looking into the non-binary scale, I was left perplexed as to why these genders are not identified throughout our legal system, not just through our passport system.
How can businesses refer to non-binary people as Mx instead of Mr/Mrs/Miss, when the legal system is not able to acknowledge this?
Although societal awareness has expanded rapidly, what hasn’t is the legal way that a person of the non-binary community, or those whom are on the LGBTQ+ spectrum, are not only identified, but also able to leave and receive gifts in Wills. With the law still behind the times, it is exceptionally important that many are made aware of how to not only address a gift to a loved one, but also how to address themselves, to make a Will legally binding.
From this spawned the question, how are people on the LGBTQ+ spectrum able to overcome these difficulties?
Common Civil Partnership
Thanks to the Marriage (Same Sex Couples) Act 2013, marriage for same sex couples is lawful, like heterosexual couples. Same-sex couples who are not married nor have a civil partnership are not recognised under common-law, meaning that if a person in this type of relationship passes away without a valid Will, then the survivor would not automatically inherit their estate.
Without making a Will, your estate may be at risk from family feuding, incorrect execution of your wishes or loss of assets to government bodies. Therefore, if you aren’t married or in a civil partnership, it is extremely important that Wills are prepared to ensure that your partner is entitled to your assets upon your death.
The importance of this is key because if a Will is not in place then the Intestacy Rules will dictate where the deceased’s estate is to pass. The Rules state that an estate will pass to the next of kin, i.e. children, parents, siblings. It is not uncommon in the LGBT community for a partner to receive nothing from the deceased’s next of kin due to the family refusing to change the distribution of the estate because they do not accept their family members same-sex partner or sexual orientation.
A common law partner has no automatic claim against property or assets held in their partner’s sole name. If an unmarried couple buys a property together, it is important to ensure it is registered in both parties’ names. If not, it will be hard to assert that the non-owing partner has an interest in the property. Therefore, if a partner dies they may have no legal claim over a property which they have lived in and contributed to.
The Effects of Pronouns
Within the Trans Community, the use of pronouns is a significant issue, and this becomes even more apparent when it comes to making a Will. Although family members may refer to someone as ‘he’ or ‘she’ in a Will, this may not necessarily reflect that individual in later life.
The law does not currently take into account individuals whom define themselves as anything outside of ‘male’ and ‘female’ gender types and is still cautious when identifying a member of the Trans Community.
Although the use of the title Mx is widely accepted in the UK by government organisations and businesses as an alternative for non-binary people, the law only recognises gender as the two categories of male and female.
Since 2004, individuals have been able to apply for a Gender Recognition Certificate which recognises their change of gender for legal purposes. This applies to gifts under Wills made on or after 4 April 2005. So, in terms of making a Will, if you decide to change your gender (i.e. male to female and vice versa) and make a successful application for a Gender Recognition Certificate, then any subsequent Wills (i.e. dated after Certificate) must recognise your new gender with the correct pronouns. If they do not, then any gift to you in the Will, will be invalid.
Under S.15 of the Gender Recognition Act 2004, if you have been mentioned in a Will that was made prior to the date of the act, then any gifts to you using the incorrect pronoun will remain valid. There is no reason to update a Will in this instance
Polyamorous Relationships
A big issue when entering a polyamorous relationship is that the UK Law deems it illegal for there to be more than one partner in a civil partnership or marriage. The notion of a ‘throuple’ or even a larger polyamorous relationship is not recognised in UK law, and therefore serious issues can arise when creating a Will.
Although you may feel that your partners are entitled to an equal share of your estate, if your property is not owned jointly then without your relationship having legal status (marriage or civil partnership), or having a proper Will in place, your significant others will not be entitled to your estate.
If you are married to one of your partners but not another, this can cause issues because the law will only recognise your spouse/civil partner as your next of kin. Without a Will, your estate will only pass to your spouse/civil partner. Your other partners would not inherit unless you specifically included them within your Will.
Since married partners rights’ trump everyone else’s, the non-married partners don’t automatically have a say in end-of-life decisions (medical or financial), funeral arrangements, or inheritance. That’s true for common law relationships, too, but the problem can be exacerbated in polyamorous relationships.
The use of trusts in Wills is also often required when three or more people wish to co-habit or enter a relationship with each other. By including a trust in your Will you are able to stipulate the exact amount that you wish to gift to your partners.
Families
The legal relationship between a minor child and a parent in a same-sex marriage should be identified in the Will.
Another issue that can arise is when only one spouse is currently the natural or adoptive parent of a minor child. The spouse of the said parent should consider adopting the child, as without this, the death of the adoptive/natural parent could enable the deceased’s family to fight for custody of the child.
The appointment of guardians for minor children in a Will together with a letter to support the reasons for the appointment will not prevent any custody issues but may support the decision made.
Individuals in polyamorous relationships may have children within the context of their polyamorous relationship or may bring children into the polyamorous relationship from prior relationships. It may be the intention that all individuals in the relationship take equal responsibility for the children regardless of biology or adoption.
If the biological/legal parent were to die, again the child would not go to the other parents in the polyamorous relationship if they were not either adopted or if there was no Will to highlight the intended guardians.
Failure to appoint guardians in a Will may result in family upheaval which could be to the detriment of the spouse and of course the minor child.
Going Forward
With an expanding number of LGBTQ+ couples, throuples, polyamorous relationships now living together, marrying, entering into civil partnerships, and beginning the stages of making their own families; there needs to be more information readily available as to how individuals can protect their loved ones, especially when the law struggles to recognise their genders and relationships.
The biggest DON’T of them all is – “DON’T” ignore the necessity of making a Will. Although the thought of death may be morbid, and the content may be sensitive, it is a requirement that every individual should make a Will in order to protect their loved ones in later years.
WHAT TO DO NEXT
If you have any more questions about Wills in regards to the above matter, get in touch today for a free initial consultation. Choose one of the methods on the right-hand side of this page, or call us on 0113 200 9787 to find out how we can help you.
Charlotte Bandawe is our Head of Wills and Probate department, leading a team of three other colleagues.
Charlotte is also a member of The Association of Lifetime Lawyers. View her Association For …
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