Making a will is essential

The most important step you can take to secure the financial future of your loved ones after you die is to make a Will. When someone dies without one, the intestacy laws cover who will inherit. As they stand, those laws only recognise marriages, civil partnerships and those related by blood. So, if you have been co-habiting, or if you are in a same-sex relationship but aren’t in a civil partnership or married, neither you or your children have any automatic legal right to inherit. 

Remember, the idea of a ‘common law marriage’ is a myth in legal terms – a cohabitee doesn’t have any inheritance rights, regardless of how long they have been living with their partner. Clearly set out your wishes in a Will and establish a cohabitation agreement to make sure your partner won’t be disinherited after you die.

You need to keep your Will up to date

Circumstances change and your Will needs to adapt to this. This is particularly important in the case of ‘blended families’, where someone remarries and step-children are potentially involved. The most important thing to remember here is that when you re-marry, this overrides any previous Will you might have made. 

It means you will need to create a new Will that takes into account your new spouse, your children and any step-children who are now part of the family. Bear in mind that there are potential risks if you decide to leave everything to your new partner and divide your assets between all the children. Your partner is free to change their Will at any time, including after your death – meaning that they could potentially disinherit your children from your assets at some point in the future.

Be very clear about the status of any children

As the law currently stands, if someone in a same-sex couple has a child with someone of the opposite sex, then their same sex partner isn’t recognised as a parent of that child. That is regardless of whether the same sex couple are married, in a civil partnership or living together. 

That means that the child would not necessarily inherit from both members of the same sex couple if they were to die – unless their Will clearly specifies this. One way around this issue is adoption: if the partner of the biological parent adopts their partner’s child, then they would be legally recognised as the child’s parent and the child would inherit. Equally, if a same sex couple adopt a child together then it would  be their child. 

Whatever form your family takes, having a professionally drafted Will is essential for keeping things clear when someone dies. Matters become particularly complex when children are involved, so whether you are part of a same sex or an opposite sex couple, we would also urge you to take advice to ensure that the status of your children is clear.

To find out more, get in touch with our Wills & Probate team. Use the link below to contact any of our team of experts today.

This article must not be construed as legal advice. All cases are different on their facts and you should consult with us directly on your case.