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Gay Times Law by Clive Sanders LLB
8 : Inheritance & Wills
Summary of Inheritance and Wills Law
right to be consulted on treatment if a partner is unconscious or incapable of consenting,
right to register partner's death
right to decide on funeral arrangements
right to Act as guardian if suffering a mental disorder (under the Mental Health Act 1983)
right to oppose or apply for sectioning under section 3 Mental Health Act
visitation rights in hospital
If you do not have a Will then your possessions will pass to “intestacy” if you die. For most gay men who don’t have a wife or children this means your parents will inherit first, then your brothers and sisters (if your parents are deceased) then your grandparents followed by your uncles and aunts.
If you have a partner then unless you make a Will leaving your estate to them they will inherit nothing. Although potentially they can attempt a legal claim on your estate if they were dependant on you; this is a long, traumatic and expensive process.
If you die your estate will be liable to IHT taxed at 40% on estate values exceeding the current threshold of £250,000. If a married person dies the transfer to the surviving spouse is exempt from tax.
For gay couples in long term relationships this causes problems and is particularly unfair. If your partner dies then IHT will be payable on his estate on values exceeding £250,000. Including the house you live in together.
In December 2002 the Government announced plans for same-sex couples to be granted many of the same rights as married ones as part of a legally recognised 'civil partnerships' scheme. Consultation is due to begin in the summer of 2003 but ministers say they have not decided on exactly what rights the scheme would give gay couples. However particular consideration is being given to Inheritance Tax and the next of kin rules (see below). The current unfair rules may change in the near future.
Next of Kin
“Next of kin” are defined as spouses or close blood relatives. This does not include a same sex partner. Problems may be caused if one partner is hospitalised or otherwise incapacitated or dies. Whilst a Power of Attorney (see below) can be drawn up allowing your partner to exercise some rights, these rights are financial rights and can not grant a same sex partner all the rights of a “Next of Kin”. For example next of kin rights include:
The legally recognised 'civil partnerships' scheme currently being considered by the government is particularly looking at granting registered same sex partners next of kin status. The current unfair rules may well change in the near future. Note that same-sex partners are already recognised as "Next of Kin" in Scotland.
Enduring Powers of Attorney
As you get older (or in the case of accident) there is always a possibility that you may become mentally incapable. In a gay relationship your partner is not considered next of kin and may not be given visiting rights and other rights to decide what happens to you and your medical or funerary care.
To avoid difficulties you can prepare an Enduring Power of Attorney (EPA) which will authorise your partner to administer your affairs if you become mentally incapable after registration with the Public Guardianship Office. For more information see the Public Guardianship Office website below.
If you are in a long term relationship you should prepare mutual wills leaving each other your worldly possessions should you die.
Also appoint a sympathetic executor/executrix. For example you may not want your grief stricken mother having to deal with your porn collection.
Think about liability to IHT. For example if one partner is wealthier think about getting a Solicitor to prepare a Deed of Trust stating that all your possessions are shared equally which could avoid a large chunk of IHT if the wealthier partner dies. Finally arrange to sign Enduring Powers of Attorney. It is a simple form and well worth a few minutes effort; it can avoid untold heartache later in life.