LGBT inheritance law

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As the UK celebrates LGBTQ history month, contentious probate solicitor Chris Holten looks at LGBT inheritance law and what your legal rights are if your partner passes away without making financial provision for you

To what extent is the lesbian, gay, bisexual and transgender community protected by our inheritance laws?

Inheritance in England and Wales is generally determined by either a Will or the intestacy rules. The Inheritance Act also offers specific protection to those who are married or in a civil partnership or where someone was cohabiting or being financially maintained by the deceased.

In 2016, just over 1 million (2.0%) of the UK population aged 16 and over identified themselves as lesbian, gay or bisexual.  The population most likely to identify as falling within this group were between the ages of 16 – 24, with more males than females identifying as LGB.  The same age group is also the least likely to have made a Will.

In 2015 239,020 opposite sex couples married, a decrease of 3.4% from 2014 when 247,372 marriages took place, and 0.8% lower than 2013.  The number of opposite sex marriages in 2015 was the lowest on record.  Comparatively, in 2015 there were 6,493 same sex marriages, 56% of which were between female couples.  A further 9,156 same sex couples converted their civil partnership into a marriage.

Of those who identified as LGBT, 70.7% identified as being single, never married or civil partnered. In terms of LGBT inheritance law this tells us that the majority of those in an LGBT relationship have limited inheritance rights.

Making a Will and the intestacy rules

If someone makes a Will, their estate is distributed in accordance with the terms of that Will.  In most circumstances if a Will is executed prior to marriage, it will be revoked upon marriage, which can catch people out.

Research suggests that those who identify as LGBT do not “own” the concept of making a Will. This is thought to be because the practice of passing your wealth down to your children is very much a heterosexual or nuclear family concept. The suggestion is that those in a same sex relationship may be less inclined to execute a Will in order to provide for their partner.

The rules of intestacy usually apply where no Will has been made. This will normally favour a surviving spouse, though it is worth mentioning that this does not always mean the entire estate passes to the surviving spouse. A non married partner has no entitlement to inherit under the rules of intestacy.

LGBT cohabiting partners

The law continues to offer surprisingly little inheritance protection for cohabiting partners.  The reality is that both marriage and civil partnerships are on the decline.  Consequently fewer relationships are protected by the limited provision already in place under the rules of intestacy.

The statistics show that those in a same sex relationships are less likely to make a Will and those who do are more likely to distribute their estate among friends and family, rather than benefiting just their partner. This could mean that adequate financial provision is not made to meet the surviving partner’s needs.

Some same sex relationships also have the added complication that they were entered into later in life.  It may be that the Will leaves everything to children from an earlier relationship, without making provision for the surviving partner.  This can create particular difficulties for the survivor as they have not only lost a loved one, but now also face an uncertain financial future.

In some scenarios it may be that one member of the relationship was not openly ‘out’ and consequently has failed to provide for their partner in their Will.

Couples sometimes put insurance policies in place in order to protect the survivor should one of them pass away.  However, it is not uncommon for the policy to pay the deceased’s estate, instead of the surviving partner.  In these circumstances the surviving partner may be forced to bring an Inheritance Act claim in order to recover the proceeds from the insurance policy that was intended to benefit them in the first place.

Making an LGBT inheritance claim

If your partner or spouse passes away leaving you without adequate financial provision (either in a Will or under the rules of intestacy) then you could consider bringing an Inheritance Act claim against your late partner’s estate.

In order to bring an Inheritance Act claim you must be either:

  1. Married to or in a civil partnership with the person who has passed away;
  2. Cohabiting with them in a relationship for at least two years before they passed away; or
  3. Have been financially dependant upon the person who has passed away.

This applies equally to both same or opposite sex couples.

Free LGBT inheritance helpline

We operate a free LGBT inheritance helpline which you can call for free initial guidance on where you stand in the event that your partner has passed away. Give us a call on 0808 139 1606 or send an email with brief details of your situation to us at [email protected]