Estate planning considerations for the LGBT+ community

Following on from Pride month, solicitor Jessica Newton looks at considerations for the LGBT+ community when making Wills and carrying out estate planning.

Wills

Sometimes, a gift in a Will may be left to individuals identifying them by their gender, for example, a legacy to ‘each of my brothers’ or to ‘each of my nieces’. Whether this affects the legacy where one of the intended beneficiaries has changed their gender depends on when the Will was executed.

If the Will was executed prior to 4 April 2005, the legacy is not affected by the change of gender of the individual, however, if the Will was made after 4 April 2005, the legacy is affected by the acquisition of a new gender by the recipient. In this case, the Court has the power to alter the disposition of the estate as it sees fit, which would enable them to rectify a failed gift. 

Appointing guardians in Wills

It is common for people to appoint guardians for their children who are under the age of 18 in their Wills in the event of their death. In order to have the legal authority to appoint a guardian, the person must have parental responsibility for the child.

When making their Wills, same sex couples would need to consider their position regarding parental responsibility and whether they have the authority to appoint a guardian for the child in their Will. If one of a couple does not have parental responsibility for the child, and the couple want them to care for the child in the event of the other partner’s death, then the partner who does have parental responsibility can appoint the other partner as the guardian of the child in their Will. This appointment then confers parental responsibility on the guardian when the Will comes into effect if the child is still under the age of eighteen at the time.

For more information on parental responsibility click here.

Inheritance Tax

There is no Inheritance Tax payable on the transfer of assets between married couples or couples in civil partnerships.

For unmarried couples, including same sex couples, this is not the case.In these cases only the transfer of assets on death up to the value of £325,000 (known as the nil rate band) will be tax free. Any assets over and above this threshold will be taxed at 40%.

Also, unlike married couples/couples in civil partnerships, unmarried couples cannot transfer their unused nil rate band. This means that anything left outright to their partner which falls over the threshold of £325,000 will be taxed on the death of the first partner to die, and potentially taxed again on the death of the second partner to die.

In order to prevent assets being taxed twice, unmarried couples may wish to consider using discretionary trusts in order to enable the survivor to benefit from their partner’s estate without the assets forming part of their estate on death and potentially being taxed twice. 

More information

If you want to discuss making or updating your Will and Inheritance Tax planning, contact our Private Client Team.

This article was written by Jessica Newton, Solicitor in our Private Client Team The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2021.