Same sex relations are accepted within England and Wales. Indeed, two people of the same sex are able to enjoy an intimate relationship and since 2005 have been able to enter into civil partnerships and, since 2014, have been able to get married.

However, what issues can being in a same sex relationship have on the drafting of wills and inheritance?

Same Sex Couples

Under the laws of England and Wales, same sex civil partners or spouses are treated the same as opposite sex civil partners or spouses. As such, if a same sex couple are married or in a civil partnership any assets that pass between these individuals under the terms of a will shall be exempt from inheritance tax. This is regardless of the value of the assets in question.

As this has the potential of the first to pass not being able to use their nil rate band (the value of a person’s estate which can be gifted under the terms of a will before being subject to inheritance tax, if the gifts are not exempt), the surviving civil partner or spouse can claim the unused nil rate band of the first to pass. This allows the surviving civil partner or spouse to benefit from the unused nil rate band, potentially minimising inheritance tax.

Additionally, a same sex couple who are not married or in a civil partnership, or who do not have wills, do not have an automatic right to the assets in their partner’s estate following their passing.

This mirrors the situation with opposite sex couples.

Children of Same Sex Couples

An issue may arise, however, when a same sex couple leave, in their will, gifts to their children. Does this mean the biological children only, or step children as well?  What is the situation for any child conceived via fertility treatment or via surrogacy?

In the first instance, we would turn to look at how the will has been drafted. If a will has been drafted in such a way as to define who constitutes the children of a same sex couple then the will is to be interpreted using that definition.

However, if there are no definitions set out in the will, or there is no will, different rules may apply.

Under the common law, the mother of a child is defined as the woman who carries the child, while the second parent is considered the genetic father.

As such, if one party in a same sex couple has parented a child with somebody of the opposite sex, the same sex partner (whether they are in a civil partnership, married or cohabiting) will not be considered the child’s parent.

In this situation, wills for the same sex couple would need to be carefully drafted to ensure that the child of the couple would be able to inherit from both parties.

If, however, the partner of the biological parent were to adopt their partner’s child there would be no reason to define the term ‘child’ within the wills.

This would also be the same result if a same sex couple both adopted a child together. In this situation, the adopted child of both parties would be considered their child with regard to inheritance.

Children Conceived via Fertility Treatment

The situation is slightly different if a child is conceived following fertility treatment.

Following fertility treatment, the woman who carries the child is considered the child’s mother. If the mother is married or in a civil partnership (regardless of whether their partner is of the same or opposite sex) that spouse or civil partner is considered to be the child’s second parent. If, however, the woman is not married or in a civil partnership but is in a same sex relationship, the woman’s partner can consent to be the second parent of the child.

Children Conceived via Surrogacy

Finally, if a child is born to a surrogate, a same sex couple can apply for a court order, known as a parental order, to be deemed that child’s parents. This can be done regardless, of if the couple are married, in a civil partnership, or simply cohabiting and living as partners in an enduring family relationship. However, one of the parties must be that child’s biological parent.

Of course, until the court order has been finalised the child will remain the child of its biological mother. This is further complicated in a situation where a woman donates an egg for another to carry to term.

Therefore, it is imperative that all parties who enter into a surrogate parent agreement all have wills drafted by professionals to ensure that no complications arise.

Summary

As you can see, while the situation of inheritance between same sex couples mirrors that of opposite sex couples, difficulties can arise as to who, under the law, are ‘children’ of a same sex couple for inheritance purposes. This can, unfortunately, lead to some issues with regard to inheritance if proper consideration is not given to how wills for same sex couples are drafted.

Lanyon Bowdler understands that wills and inheritance are not the most straightforward of concepts. Our dedicated private client department is always willing to help.

Should you have any questions or queries, please contact a member of our team who will be able to assist.