Inheritance Rights for Same Sex Couples

With the rights of same sex couples dominating the headlines at the moment, we thought it would be a timely opportunity to provide an overview of the inheritance rights of people in a gay or lesbian relationship.

Earlier this year the European Parliament adopted a resolution calling on member states to ensure the inheritance rights of gay and lesbian couples are respected around the EU. Unlike many other EU countries, the law in England and Wales has developed in a positive way by mainstreaming the legal position of same sex relationships and ensuring that people have equal rights when their partner dies, regardless of sexual orientation.

Our law deals with this in two ways:

Firstly, the rules of intestacy have been changed to include civil partners.

Secondly the Inheritance Act has been amended to allow inheritance claims by gay and lesbian partners, whether or not they have entered in to a formal civil partnership.

The Intestacy rules

If anyone dies without making a will their estate will be distributed in accordance with the intestacy rules.

The intestacy rules now specifically provide for surviving civil partners to be treated in exactly the same way as a surviving spouse. The rules entitle a civil partner to receive the following from the estate:-

  • If there are no children the estate shall be held in trust for the surviving spouse or civil partner absolutely;
  • If the deceased dies leaving children the surviving spouse or civil partner shall take the personal chattels, the first £250,000 of the estate and one half of the remaining estate upon trust during their life.
  • If the deceased dies leaving no children but a parent, siblings of whole blood, or nieces and nephews of whole blood, the surviving spouse of civil partner shall take the personal chattels, the first £450,000 of the estate and one half of the remaining estate absolutely.

Inheritance Act Claims

  • If the intestacy rules, or indeed the deceased’s Will, fail to make “reasonable financial provision” for a surviving same sex partner then they may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, so long as they fall into one of the following categories:-
  • If you are a civil partner of the deceased;
  • If you are a former civil partner of the deceased, but have not formed a subsequent civil partnership;
  • If for the whole of the period of 2 years ending immediately before the date when the deceased died you were living in the same household as the deceased as his or her civil partner;
  • If you were being maintained by the deceased immediately before the date of death.

The 1975 Act therefore now enables people who are in an established same sex relationship to bring an inheritance claim even if they had not entered into a formal civil partnership with the deceased.

Our specialist team of contentious probate lawyers are able to advise on gay inheritance disputes, gay will disputes and inheritance law as it affects gay and lesbian people. If you require free initial advice on your inheritance rights or think you are eligible to bring an Inheritance Act claim then please call me for a free case assessment on 0808 139 1599 or email me at naomi.ireson@sleeblackwell.co.uk