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Why LGBTQIA+ cohabitants should consider making a Will

It is untrue that “common law” spouses have the same rights as married couples or civil partners when it comes to passing on assets on death.

I am living with my partner — do I need to make a will? The short answer is 'yes'. We explain why below.

If a couple is unmarried and has chosen not to enter into a civil partnership or marriage, what happens on the death of one of the parties depends on whether a will has been made.

The deceased’s estate will be distributed in accordance with a will, if one has been made. However, without a valid will in place, the deceased is 'intestate' and their estate is distributed in accordance with the 'intestacy rules' which dictate who should benefit from that estate, starting with spouses or civil partners, followed by children, and then wider family members.

LGBTQIA+ couples should take advice on their parental status, as the intestacy rules generally only benefit biological or legally adopted children.

Intestacy rules

When an unmarried/non civil partner dies "intestate", the surviving partner receives nothing at all under the intestacy rules. If they sought to benefit from the deceased’s estate, they would have to consider costly and stressful litigation to receive anything at all. The law is out of step with society.

Joint assets

Joint assets may pass to the survivor but this will depend on how those assets are held. Read more about property ownership and cohabitants.

A house held as tenants in common will be dealt with as if each partner owns a specific share of the property, and that will form part of a partner’s individual estate and will not automatically pass to the surviving co-owner.

Why make a will?

It is vital that couples living together plan how they intend to own their property and make a will to ensure that each other’s financial security is provided for. Whilst statistics show that two thirds of the adult population have not made wills, for cohabiting couples, making a will is critical.

At the same time, parties can ensure that they have appointed guardians for children and set out what should happen when both partners have passed away. This is especially relevant for LGBTQIA+ couples, as the legal parentage of a couple’s child could be more complex, and the surviving partner may need to be appointed as the legal guardian for a minor child. Read more about “who is a legal parent

Similarly, from an inheritance tax perspective, there is no equivalent of the spouse allowance for cohabiting partners. A will can therefore be drafted to ensure that the survivor is left adequately provided for but without leaving assets to be taxed twice — once on each death.

Likewise, inheritance tax allowances such as the ‘Residence Nil Rate’ Band are only available where part of an estate passes to lineal descendants; LGBTQIA+ couples who co-parent a child need to be aware of the rules as their parental status legally may not meet the strict criteria of certain tax rules.

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