In: Wills and Probate

Even though same-sex marriage is legal in all parts of the United Kingdom, many same-sex couples have made the personal choice to remain living together without either getting married or entering into a Civil Partnership. This largely means that most same-sex couples would benefit from making a will if their relationship is not legally recognised.

The Law and Same-Sex Marriage

Compared to the long-standing legal recognition that has been given to heterosexual marriage, same-sex marriage has only been recognised in very recent times. It is now legal in all parts of the United Kingdom, but as marriage is a devolved legislative matter, different parts of the UK legalised it at different times. It has been recognised in England and Wales since March 2014, in Scotland since December 2014, and in Northern Ireland since January 2020. Despite this, same-sex marriage is only legal in nine of the fourteen British Overseas Territories. Due to the comparatively late legalisation of same-sex marriage, it is therefore no surprise that many couples choose to co-habit. In 2017, the Office for National Statistics (ONS) recorded the numbers of same sex couples in the following three categories:

  • Same sex married couple – 34,000
  • Civil Partnership couples – 55,000
  • Same sex cohabiting couples – 101,000

How to ensure that your partner receives inheritance

There is a common misconception in England and Wales that couples who have chosen to live together are somehow protected by law – this is commonly referred to as a ‘common law marriage.’ However, this is not the case for either a heterosexual or same-sex partnership. Put simply, if you are not in either a legally recognised marriage or civil partnership, then your partner will not be legally entitled to inheritance unless you have explicitly written it in your will. Additionally, the Rules Of Intestacy rule that if you die without a Will in place, then everything you own will be distributed amongst your relatives in order of priority. If you are cohabiting with your partner but you are not married or in a Civil Partnership then your partner will not be acknowledged under these rules, regardless of how long you’ve been together. This could mean that your partner is left with nothing. In order to ensure that your partner is provided for, you need to make a will.

Writing Your Will

When you are writing your will, you should include:

  • Who you would want to benefit from your will
  • Who should look after any children under the age of 18
  • Who is going to organise your estate and carry out your wishes after your death (known as the executor of your will)
  • What happens if the people you want to benefit from your will die before you

In addition to needing specialist legal advice if you live with someone who is not your husband, wife or civil partner, you may also need legal help if:

  • You want to leave money or property to a dependant who cannot care for themselves
  • You have several family members who may make a claim on your will, such as a second spouse or children from another marriage
  • Your permanent home is outside the UK
  • You have property overseas
  • You have a business

For your will to be considered legal, you must:

  • Be 18 or over
  • Make it voluntarily
  • Be of sound mind
  • Make it in writing
  • Sign it in the presence of 2 witnesses who are both over 18
  • Have it signed by your two witnesses, in your presence

If you make any later changes to your will, then you must follow the same signing and witnessing process.

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