After the tragic death of his boyfriend of 14 years, a reader asks our legal expert Matt Parr if he can, when he dies, be buried next to his partner when the family of the deceased won’t allow it.
Writing to THEGAYUK, MB* from London told us that his partner of 14 years died suddenly in a car crash. Although he and his partner’s family always got on well, when MB told them of his plans to get buried alongside his deceased boyfriend when he eventually dies, the family wrote him a letter telling them that they wouldn’t allow that to happen.
He told us, “I got a letter from his family which said under no circumstances would they allow me to be buried with my partner. We weren’t married, but we did own a house together and the mortgage was paid off a while ago. Is there anything legally I can do to ensure that I can be buried next to my partner”
“Exclusive Rights of Burial”
Matt Parr suggests that MB’s first port of call should be to his local council, saying, “I would contact your local Council office and ask to speak to their bereavement department. You can make enquiries into the possibility of purchasing the Exclusive Rights of Burial for the plot next to your partner if the cemetery is Council-owned.
“While this does not afford you the legal ownership of the land itself, it does give you the right to be buried there and for your family to erect a memorial. It may be a question of moving fast to try and secure the plot as your partner’s family may try to purchase the same as a preventative measure.
Make a Will and specific what you want
“If you do not already have a will in place which stipulates your funeral wishes, I would advise that you speak to a solicitor regarding preparing one. In the will, you would be able to alert your executors to the fact that you have purchased the plot and wish to be buried there. While your funeral wishes are just wishes and unlike the rest of your will aren’t binding, it will ensure that steps are taken for you to be buried there, even if this is not ultimately possible for one reason or another.
This response is not intended to constitute legal or other professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Individuals should always seek legal advice from a professional which is specific to their unique set of circumstances”
This month legal expert, Matt Parr tells us everything we need to know about wills and inheritance – especially if you’re lesbian, gay, bisexual or transgender.
Members of the gay community face many of the same dilemmas as opposite-sex couples when it comes to estate planning, wills and their potential exposure to inheritance tax.
According to figures recently issued by the Office of National Statistics, there were 190,000 same-sex families in the UK in 2017 and the majority of those were co-habiting couples as opposed to being married or in a civil partnership. In this situation, those couples or family units face the same issues as co-habitants of the opposite sex. Therefore, there are some important points that they should be aware of.
Co-habiting partners do no automatically inherit assets which were held in their partner’s sole name. In the same way that there is no such thing as “common law husband/wife” there is no such thing as a “common law civil partner”. With this in mind, if you aren’t married or in a civil partnership it is extremely important that wills are prepared to ensure that the surviving partner is adequately provided for after your death.
This can prevent family feuds, confusion over your wishes and costly legal action.
If you’re not married or in a civil partnership and you have no children of your own, then the law dictates that your parents will inherit your estate. Unfortunately, rifts are not uncommon amongst families of the gay community and there are many instances of parents being unwilling to accept their son’s same-sex partner into the family.
The thought of a parent inheriting a share in a property you own as tenants in common with your partner may fill you with dread – is there any possibility your parents would wish to co-own a property with your partner? If the answer is no, your parents could insist on selling the property, forcing your partner to move. Preparing wills would prevent this situation from arising. When property is owned as joint tenants as opposed to tenants in common your partner will inherit your interest in the property regardless of whether you have a will or not.
There is no form of inheritance tax relief for co-habiting couples of any sexuality. Consequently, only the first £325,000 of your estate, otherwise known as your Nil Rate Band (NRB) will be tax free – the balance over and above this will be taxed at a rate of 40 per cent. Therefore, even if you did decide to leave your entire estate to your co-habiting partner, they could be left with a hefty inheritance tax liability. Married couples and those in civil partnerships can leave their estates to each other and benefit from a total exemption for inheritance tax purposes, meaning on first death at least, there will be no inheritance tax to pay.
Unlike married couples and those in civil partnerships, cohabiting partners are unable to transfer their unused NRBs between them. Consequently, many gay couples make use of trusts in their wills to try and avoid an inheritance tax liability by giving them access to the funds without necessarily increasing their own inheritance tax exposure. The use of trusts to control the way funds are inherited, by whom and when, is particularly helpful when one or both of you have children from a previous relationship to whom you would wish to leave your estate, without compromising your surviving partner’s rights to live in your joint property after you have died. Advice should be sought as to your options in this scenario in order to ensure the trust is drafted correctly and in accordance with your wishes.
Gay couples who have taken the plunge and married or entered into a civil partnership can benefit from the same legal rights as opposite-sex couples, including the right to receive a statutory legacy together with a certain proportion of the balance of their partner’s estate if their partner dies without making a will (intestate). Ideally, however, the intestacy rules should not be relied on and my advice would always be to prepare a will specifying how you wish for your estate to be distributed.
Members of the gay community enter into polyamorous relationships in the same way as those in the heterosexual community. Whilst still not necessarily subject to a wider understanding by the public, it is impossible to deny that these forms of relationships exist and therefore it is right to encourage those who enter into them to seek advice on their rights and obligations to one another.
According to UK law, it is illegal to enter into more than one marriage or civil partnership. How members of a polyamorous relationship choose to protect each other’s interests is, therefore, more difficult – but not insurmountable. Again, the use of trusts in wills can prove extremely helpful in ensuring a degree of flexibility and afford a level of protection for the assets within the trusts. This is often required when three or more people wish to co-habit or enter into a relationship with each other.
Seeking advice about your options in this regard can be tricky. The fear of judgment and lack of understanding can deter you from gaining an insight into your options, but there are advisers equipped with the knowledge to help and offer a non-judgmental ear in complete confidence.
Transgender dimension
Currently, under UK law it is not possible to self-define your gender without a formal diagnosis of Gender Dysphoria and a successful application to a gender recognition panel for a Gender Recognition Certificate (GRC). This process can be lengthy and painfully intrusive. But once you have a GRC, what are the legal implications for estate planning and inheritance purposes?
It is important to consider the fact that wills prepared post-4 April 2005 which claim to gift assets to, for instance, “my sons” or “my nephews”, will exclude an individual who has obtained a GRC and who now identify as female. The beneficiary would need to apply to court to alter the disposition in order to rectify a failed gift because of a change in their gender means they no longer align the gender stated in the will. This application could become expensive and lengthy if other beneficiaries take objection to the change being made if this will adversely impact their own share of the estate.
Any will prepared before 4 April 2005 which purports to gift assets in this way does, however, continue to be effective despite a GRC having been issued to the beneficiary.
Members of the transgender community should be aware of the fact that family members may need to amend their own wills to take into account this change in the law and to avoid any uncertainty around the wording of such a gift.
With the growing number of gay couples living together, marrying, entering into civil partnerships and starting, fostering and adopting families of all different sorts, the gay community is just beginning to grapple with the same issues that heterosexuals have faced for centuries. Yet, some of these issues are easily overcome with the right advice.
Ultimately, the worst thing you can do is bury your head in the sand when it comes to discussing what can be tricky and sensitive matters with your family and planning ahead, where possible, is always the best course of action.
A reader asks whether not having a will, will affect his partner of 6 years will inherit should he die unexpectedly.
Dear Matt,
My partner and I have been together for 6 years and although we’re not civilly married, I was wondering what our rights were in case of an accident or death. We currently rent and don’t own our house, but we do have various other assets such as stocks and savings. Neither of us have made a will. What would happen to the surviving partner if the worst was to happen? Would my assets go directly to him?
Thank you for your time
Steve N.
Dear Steve,
The simple answer is no. Currently, co-habiting partners have no (automatic) legal right to inherit assets from their partner’s estate unless provision is made for them in their partner’s will.
Only assets that are held in joint names (such as joint bank accounts) will pass to the surviving partner automatically by ‘survivorship’ and simply require the removal of the deceased partner’s name from the account; such assets are not affected by the presence (nor contents) of any Will.
In cases where the deceased partner left no will (or a defective/invalid will) all assets held in the deceased partner’s sole name will pass according to the Intestacy Rules. These rules stipulate who will inherit the estate in a strict order of priority of relatives – spouse/civil partner, children, parents, siblings and so on and so forth. Co-habiting partners do not feature in this list!
My advice would be to always seek professional advice from a solicitor to create appropriate wills to ensure that your loved ones left behind are not unwittingly disinherited through your inaction.
You should also be conscious of the inheritance tax implications of remaining unmarried or not in a civil partnership. The transfer of assets after death may trigger an inheritance tax liability, as executors would be unable to claim valuable exemptions, such as the spouse exemption.
This response is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Individuals should always seek legal advice from a professional which is specific to their unique set of circumstances.
This article was updated on the 16th November 2018
This week a reader asks whether if he’ll have rights to a house that he’s paid into along with his husband, once their civil partnership has been dissolved. A solicitor from law firm, Grayfords reassures that he does have rights.
CREDIT: bigstock
My partner and I have been together since 2001 (civil partnership in 2009). I have decided I would like to dissolve the partnership as our relationship has entirely broken down. We own a house together which I moved into in 2004 and have since paid half of the mortgage payments, though it is in his name. Will I have rights over this property and can you tell me what your experience is of dealing with the breakdown of same-sex partnerships?
Thank you for your question. I expect it’s one that a lot of people have had at some point, either about their own relationship or that of a friend or family member.
First of all, a word on terminology and some reassurance. Marriages are divorced and civil partnerships are dissolved. But other than that, the process is largely the same and, I’m pleased to say, your financial and property rights are identical. Please don’t panic: the fact that the house is in your partner’s name does not mean you’re left high and dry. By virtue of your civil partnership, you automatically have property rights. Any settlement you reach should be based largely on what a court would do if it was considering your case and the starting point for a court would be a 50:50 split of capital assets (so property, pensions, savings).
A court would then consider the needs and resources of both parties, taking into account all the circumstances of the case. This might cause the court to award one person more than 50% of the value of an asset. Are both of you working so you could afford payments on two new, separate, mortgages, are there any disabilities or illnesses to consider that might mean one person needs a bigger share, does one person’s pension remain intact because if so they might not get such a big share of a property?
These are the sorts of questions a court would ask. Financial cases have so many factors that it’s hard to give you an idea exactly what you might be entitled to without knowing more detail. I suggest you try and book an appointment with a solicitor, either on a paid basis or a free initial appointment which some offer.
After even a brief chat we could give you a clearer idea where you stand. Until then though, you can be confident that you do have rights in your property and that with a solicitor’s help you can secure your financial future.
Having worked in family law for the a number of years, I’ve dealt with a good many cases involving same-sex couples. By and large, the concerns of same sex partners when they break up are the same as those of heterosexual partners – finances, property and, in many cases, access to children.
