Gay couples, whether they are in civil partnerships or not, should view making a will as an essential task, legal experts say.
Here, solicitor Josine Cohen from leading national law firm Russell Jones & Walker outlines what will happen if a will is not made and what people can do to ensure their estates are left to those they love.
Why is it important that I make a will and is it really necessary?
The answer to this one is definitely yes, you really should make a will If you do not have a will your estate (everything that you leave) will be subject to a legal process known as intestacy which determines how and to whom your estate will be distributed.
For those people who aren’t in a civil partnership your partner will not benefit at all under the intestacy laws. Even for those people in a civil partnership your partner will only benefit so much, after which whatever else you have will be distributed according to the intestacy laws. Getting a will is an essential document to provide your partner with some security.
A major financial advantage of a civil partnership is that anything you transfer to your civil partner on death, or during your life, is exempt from inheritance tax.
Is there anything that I can do if my partner has died and not made a will?
If you have entered into a civil partnership you are entitled to something from their estate, if you are not then technically you would normally get nothing.
Whether you are in a civil partnership or not, you can take action to increase the amount you receive, or ensure that you get something from the estate.
This can happen in three ways:
The first option would be to try and agree something with those who will benefit under intestacy to a different distribution of the estate. This is quite rare for the families to do this and you will more than likely that you will have to undertake legal proceedings.
The second option is if you have not been properly provided for you can claim against the estate of your partner under the Inheritance (Provision for Family and Dependants) Act. For this to work you would need to have been financially dependent on your partner for a certain period of time.
The third option is that you may be able to claim against the estate if you have contributed to the ongoing costs of running the property. This is particularly true if you have contributed to mortgage payments. This would enable you to make a claim against the estate on the basis that you have an equitable interest in the property. Of course, to substantiate this you would need some kind of evidence.
Is there anything else I should be aware of when looking into making a will?
There is of course the possibility that even if there is a will a member of the family who would otherwise benefit may try to claim that the will is void for some reason.
Therefore, it is best to make wills when you and your partner are both of sound mind and perfectly capable so it may not be argued later that they are invalid.
If you have a legal question or want more guidance on an area of law for LGBT people, email firstname.lastname@example.org.
This information relates to England and Wales. It is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more information of details of this matter referred to on this site please seek independent formal legal advice
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