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LGBT – Making a Will and Estate Planning

Posted on 6th June, 2018

It is a common misconception that you only need to draft a Will once you are of a certain age and Wills are commonly associated with families passing their estates down to their children. This couldn’t be further from reality, everyone needs a Will in order to protect their assets and make sure their estate is inherited by whom they choose.

Cohabiting Couples

If you do not have a Will then your estate will be dealt with under the intestacy rules. The automatic position is that your spouse inherits the first £250,000 of your estate; civil partners are included in the definition of spouse for the purposes of inheritance. However it is becoming increasingly more common for couples to cohabit rather than to get married or become civil partners.

No matter the length of time you have cohabited with your partner they will not inherit under the intestacy rules. Rather your parents or siblings will commonly inherit your estate as they are next in the bloodline if you do not have children, the relationship you had with your parent or sibling during your lifetime is not taken into account. Therefore a parent or sibling that you have not been in contact with for an extended period of time would administer your estate and inherit your assets. This may lead to your partner being excluded from inheriting your estate; this is a particular risk if the house you share is in your sole name as it may lead to your partner losing their home. The only way to ensure that your cohabiting partner inherits your estate upon your death is to make a Will.

Children

The law surrounding children of same sex couples is ever changing in order to evolve with fertility treatments which have become available. However the intestacy rules have not yet caught up.

The definition of child under the intestacy rules do as not automatically account for couples of same sex relationships. In order to be considered a child for the purposes of the intestacy rules a child must be biologically yours or you must have legally adopted them. It is a common scenario for same-sex couples that a child is the biological child of one of the couple and not the other. However the non-biological parent would of course want that child to inherit as by all intent and purposes is their child. However if your child is not biologically yours then they may not inherit under the intestacy rules, therefore it is vital you draft a Will leaving your estate to your child.

Powers of Attorney

It is not just in the case of Wills that you may want to protect your interests. In order to plan for if you are to lose capacity at some point in the future then you may wish to obtain a power of attorney.

There are two different types of powers of attorney, one for financial decisions and the other for decisions relating to your health and welfare. If you are cohabiting with your partner a Doctor may not automatically consider your partner to be next of kin despite your partner likely being the person who knows your wishes. In order to protect yourself should you lose capacity you could create a power of attorney in favour of your partner. This document will lead a Doctor to ask your partner what your wishes would be.

Should you wish to talk about Wills or Powers of Attorney please contact Emily Robertson on 01642 356545 or erobertson@jacksons-law.com

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