INHERITANCE RIGHTS FOR SAME SEX COUPLES

There have been a number of articles in the press recently regarding inheritance rights for same sex couples. What is apparent in many of the articles is that many people do not know their entitlements to their partner's estate should they die.

One of course hopes that a Will makes proper provision for spouses, partners, and dependants, however this is sadly not always the case. Should there not be a Will or the Will makes insufficient provision it is possible to make an application for relief to the court under the Inheritance (Provision for Family & Dependants) Act 1975. This relief can cover a transfer of property, the payment of a lump sum and provisions for future income.

An entitlement to apply for relief only arises if the claimant falls into one of the following categories:

a) spouse or former spouse of the deceased who has not remarried;
b) child of the deceased, or a child treated by the deceased as a child of the family;
c) couple who are living together as husband and wife at least two years before the deceased died;
d) person who was wholly or partly being maintained by the deceased immediately before the deceased's death.

The classification of applicant has a particular impact on the ease with which same sex couples may bring a claim because of the difficulty these couples have showing their history living as "husband and wife". It could argued under article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms Act that the phrase "living together as husband and wife" should be interpreted more widely to cover same sex couples, and should read "living together as if they were man and wife". There has already been support for this interpretation in a case dealing with a transfer of tenancy under the Rent Act. However, it remains untested and generally same sex couples make applications as being either wholly or partly maintained by the other. This of course can cause problems if the claimant was not financially supported by the deceased.

Under legislation currently being considered by the government, same sex partners will be given the right to register their relationship, which would go some way to overcoming the above hurdles. If a couple decide to do this, the likelihood is that they will be treated as spouses and so have the automatic right to apply under the Inheritance Act. However, this legislation would not end discrimination for same sex couples who choose not to register, since they could only claim on the basis they had been living together for two years or be wholly or partly maintained by the other.

If you would like to know more please contact:

Clare Munro regarding Inheritance Claims or Fiona Read regarding Cohabitation disputes.