Wills for LGBTQ+ People

Wills aren’t something most people think about regularly. In fact, they often only come to mind when we experience the loss of someone close to us.

However, a will is one of the most significant documents you will ever create. It reflects your wishes and ensures that your loved ones are cared for according to your instructions after you pass away.

The absence of a will can lead to disputes, and this can be especially true within the LGBT+ community. Whether you’ve just come out of a long-term relationship, or you’re an adoptive parent, or have children from previous relationships, having a clear plan in place is crucial to avoid any disagreements or misunderstandings.

This guide aims to highlight the importance of a well-crafted will and offers guidance on how to put one in place if needed.

Married or Civil Partnered Same-Sex Couples

Married couples and those in civil partnerships are treated equally under the law, regardless of their gender composition. 

This includes exemption from inheritance tax on assets left to you by your spouse. For those with significant assets exceeding the £325,000 threshold, seeking professional advice on inheritance tax planning is advisable to ensure your will is as tax-efficient as possible.

If you die without a will and have no children, your spouse will inherit everything. If you do have children, your spouse will receive up to £322,000 of your estate, with the remainder being divided equally between your spouse and children.

If you have separated from your spouse formally, the intestacy rules no longer apply to them, and your inheritance will be passed to your children or next of kin. However, your ex can make a claim on your estate under specific circumstances. If you want to avoid this, you can apply for a “clean break” order or consent order that states they cannot make a claim on your estate.

If you do have a will, updating it after your divorce to reflect your current situation is essential. You may want to name a new partner or remove your ex-partner as a beneficiary to avoid complications.

Cohabiting but Not Married or in a Civil Partnership

Cohabiting couples do not enjoy the same inheritance rights as married couples or those in civil partnerships. Regardless of the length of your relationship, if there is no formal legal union, inheritance can become more complicated.

For example, if you’re living with a new partner, and you haven't finalised a divorce with your ex, your new partner will have no claim over your inheritance.

Without a will, the rules of intestacy will determine the distribution of your assets.

Looking After Your Loved Ones
Every family is unique; while many are supportive and accepting, this is not always the case for LGBT+ individuals.

If you have no children, the rules of intestacy dictate that your estate will go to your parents or siblings rather than to a cohabiting partner or friend. If your relationship with a parent or sibling is strained, it’s essential to make your wishes clear while you’re alive.

Prevent unnecessary disputes among family members by setting out your wishes explicitly.

Important Considerations for LGBT+ Parents

• Who will care for your children if you are no longer able to?
  Should both you and your ex-partner be unable to care for your children, it’s crucial to decide who among your trusted friends, family members or new partners will take on this responsibility. Who do you trust to manage their inheritance until they are old enough to handle it themselves?
  Ensuring that your child will be cared for by someone you trust can bring you peace of mind, knowing that their future is secure.

• Who are the legal parents of your children?
  If a non-biological parent has not legally adopted the children you are raising, it is important to specify their rights to custody in your will. If your ex-partner had children from a previous relationship and you wish to include them in your will, this should also be clearly stated.

Crafting a Comprehensive Will
Though it may seem overwhelming, with the right guidance, you can create a will that reflects your wishes and ensures your loved ones are looked after. A will specialist can tailor the process to suit your unique family structure and requirements.

If you require compassionate and expert legal support, contact our partner law firm, Slater Heelis, via their website or on 0330 111 3131.