Pride was a riot – a fact that often seems to be forgotten during this month’s sea of rainbow flags and merchandise. Pride month is celebrated on the anniversary of The Stonewall Riots. They were largely started by transgender women of colour at the Stonewall Inn in New York in 1969 and followed years of discrimination against LGBTQ people by the police and wider society. The legacy of Pride and its anti-establishment beginnings can still be felt amongst the LGBTQ community today. During Pride month, whilst LGBTQ issues are often in the media it is a good time to think about LGBTQ Estate planning.
In 2019 the government undertook a survey on sexual orientation. It revealed that 6.3% of the population identified as LGBTQ. The actual number of LGBTQ in Britain today is likely to be much higher, as due to the continuing social pressures of our heteronormative society, some individuals are unlikely to reveal their true sexuality or gender identity on government surveys.
The ways in which some LGBTQ people choose to legally regulate their relationships, have children and interact with their biological families means that Estate planning can be particularly important for the LGBTQ community.
In England and Wales inheritance after an individual dies is dealt with in one of two ways; you can either make a Will or your Estate will be dealt with under the Administration of Estates Act 1925. When you put a Will in place you can leave your Estate to whomever you choose (subject to certain individuals being able to make a claim). Without a Will, your Estate will be administered under the rules set out in the Administration of Estates Act 1925, otherwise. known as the intestacy rules.
The Administration of Estates Act dates back to 1925 so it does not consider modern family structures, or any decisions individuals may make outside of the ‘traditional nuclear family’.
Where the intestacy rules apply (where there is no Will), the first beneficiary is a spouse. A spouse will receive 100% of the Estate if there are no children. If there are children, the spouse will receive the first £270,000 of the Estate. Any amount over this figure will be split 50% to the spouse and 50% to any children.
In the 2019 government survey, of the people who identified as LGBTQ, 68.8% stated that they had never married or entered into a civil partnership. So, what happens under the intestacy rules if you are cohabiting or single? A cohabitee does not automatically inherit your Estate. This is despite the urban myth of ‘common law marriage’, which is sometimes believed by long-term cohabitees.
If you are unmarried or do not have a civil partner but you have children, then your children would inherit 100% of your Estate.
It is not just romantic non-married or non-civil partners who are excluded under the intestacy rules: children of the family, in some circumstances, may also be excluded from being able to inherit under the intestacy rules. For a child to inherit under intestacy, they must fall under the legal definition of ‘issue’ which can disproportionately disadvantage LGBTQ people.
LGBTQ people often build their families using assisted reproductive technology. Legal parenthood involving third-party reproduction can be complex and requires specific fertility law advice from a specialist solicitor. By way of example, in the case of surrogacy for same-sex couples, legal parenthood does not pass to the intended parents until a Parental Order is made. The child would not, therefore, be considered ‘issue’ for the purposes of the intestacy rules if the intended parents died before the Parental Order was made. As such, making a Will when engaging in a surrogacy arrangement is vitally important, not only for the surrogate born children, but also to provide for the surrogate should the intended parents die during the pregnancy. However, many people choose not to have children. In these circumstances, your Estate is inherited by your biological family – in the first instance, your parents, and if they have not survived you, then your siblings (if you have any). Individuals without these categories of relatives can end up benefiting family members they have not met. In rare cases your Estate can end up with the Crown.
The concept of ‘chosen family’ is a key part of LGBTQ culture. Sometimes LGBTQ people are rejected by their biological family and create a family of their own from friends who accept them for who they are. In these circumstances, archaic rules which place blood over love and care in relationships can lead to upsetting results, such as where blood relatives inherit when this is not what the deceased would have wanted. This is why executing a Will is critical for the LGBTQ community. When drafting a Will, a statement of intention can be placed alongside it – although not legally binding, the statement of intention can explain why you want close friends to inherit rather than your biological family.
It is important to be aware that the intestacy rules only apply in England and Wales. If you are not domiciled in England and Wales or you have assets outside of England and Wales, then different laws apply. LGBTQ people need to take particular care as there are jurisdictions where LGBTQ relationships are not recognised and, in some cases, illegal.
The Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA)
If you feel you have not been fairly provided for under the intestacy rules, or in fact under a Will, you can make a claim under the IPFDA. This act states that a person can bring a claim against someone’s Estate if reasonable financial provision has not been made for them. However, what is considered ‘reasonable financial provision’ is, once again, dependant on the legal status of your relationship.
The IPFDA has a gold standard for spouses. The court has wide discretion to decide what is considered ‘reasonable provision’ in all circumstances whether or not they require the inheritance for their maintenance. Three other categories of people can claim under the IPFDA – children, children of the family, and anyone who was maintained by the deceased prior to their death. However, the act states that their reasonable financial provision must be based on what they require for their maintenance.
It is not difficult to imagine a scenario where a long-term cohabitee would have wanted their same-sex partner to inherit from their Estate but their Estate, including property and sentimental items passes to their biological family, rather than their same-sex partner, because there is no Will. If the cohabiting partner is not maintained by the deceased, they may be unable to make a claim under the IPFDA and may essentially be left without recourse.
The best way to circumvent the intestacy rules and ensure that the people you would choose to inherit your Estate do, is to make a Will. Making a Will can be an emotional and tricky process, but it is often straightforward if you receive tailored legal advice.
If you would like further details on making a Will, please contact emilyrobertson@burgessmee.com.
If you require advice on fertility law, please contact nataliesutherland@burgessmee.com.
