June marks National Pride Month, dedicated to celebrating LGBTQ+ communities and inclusivity.
The National Month of Celebration came about after New York’s Stonewall riots in 1969, which acted as a catalyst for the gay rights movement across the world.
Now, National Pride Month sees celebrations of love take place across the globe every year, to harbour acceptance, and equality, and raise awareness of issues the LGBTQ+ community still face.
But, although same-sex marriages became lawful more than a decade ago in the UK, there is still confusion around LGBTQ+ legal rights, including how to write a Will, the importance of pronouns and what happens to your estate in a civil partnership.
We have rounded up some matters that may arise when sorting the affairs of a member of the LGBTQ+ community.
To download and view an infographic of this article, click here or use the ‘Download PDF’ button at the foot of the text.
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, just as with heterosexual couples.
Without making a Will, your estate may be at risk from family feuding, incorrect execution of your wishes, loss of assets to government bodies or just not passing to your chosen beneficiary.
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 be distributed to family members in a strict order.
It is not uncommon in the LGBT community for a partner to receive nothing from the deceased’s estate due to the family refusing to change the distribution of their estate either because they do not accept their family members’ same-sex partner or sexual orientation, or they do not wish to give up their own entitlement to the estate.
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 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 take priority over 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.
This is also true for common law relationships, 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 cohabit 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 surviving spouse or civil partner 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
Get in touch today for a consultation in complete confidence. Choose one of the methods on the right-hand side of this page, or call us on 0113 200 9720 to find out how we can help you.
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Christina Taylor joined Oakwood in 2023 as Deputy Head of the Wills and Probate Department.
Christina has over 20 years’ experience in her previous firm and qualified as a Specialist Paralegal in…
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