The Marriage (Same Sex Couples) Act 2013 came into force on 13th March 2014 and same-sex marriage became legal in England and Wales on 29th March 2014.

So, what impact does this have on your Will and/or making a Will? And what other things should gay people consider when making a Will?

One of the fundamental features of the new legislation is called the principle of ‘equivalence’, which means that from the 13^th March 2014:

1. References to marriage and related terms in existing legislation, however expressed, will be read to include same-sex marriages, and;
2. References to marriage and related terms in new legislation will be read in a specified way. For example, the term ‘husband’ will include a man married to another man, but not a woman married to another woman (thereby preserving the gender specific meanings of husband and wife).

However, the equivalence provision does not alter the effect of a Will (or Trust) made before 13th March 2014. Therefore, in the absence of anything to the contrary, the natural reading of a Will made before this date means that references to spouses do not include same-sex spouses – so in other words, your Will may not automatically leave what you want to your same-sex spouse.

Potential confusion also lies in the provisions of the Act which will enable couples in existing civil partnerships to convert to marriage (which is not yet, but will become, possible). We know that the effect of a conversion will be that the civil partnership will dissolve and the couple will be treated as having been married since the date the civil partnership was formed. We assume – but it is unclear at this stage – that this will not trigger the automatic revocation of an existing Will.

Whilst these questions will be answered in time, for now it’s essential to ensure that the wishes of a person making a Will are stated clearly, so that his or her intentions and preferences relating to the meaning of terms such as ‘spouses’ and ‘partners’ cannot be misunderstood.

If you do not have a will and are not in a civil partnership, your partner is not entitled to inherit any of your assets upon your death. (Minor exceptions to this rule include joint tenancies.) Therefore, if you have a long-term partner, you may want to consider entering into a civil partnership or same-sex marriage. If you enter into a civil partnership your partner is treated as your next of kin, which means your partner will be eligible to inherit on intestacy (passing away without a will).

Of course, it is always preferable to have the ultimate say over how your assets are devolved on your death and this can only be achieved by making a Will. It also means that your partner can make decisions on your behalf, if for example you were to become terminally ill. (See our advice on Legal Power of Attorney)

A further benefit of entering into a civil partnership or same sex marriage is that your partner is treated as your ‘spouse’ for the purposes of Inheritance Tax (IHT). This means your assets can be transferred to your surviving partner using the ‘nil rate band’ of £325,000; anything over this is taxed at 40%. If you die without entering into a civil partnership/same-sex marriage and you have not made a Will that leaves all your assets to your civil partner, your estate or your partner may be liable for IHT on your death. This is because your partner is not treated as a ‘spouse’ and does not qualify for the nil rate band. Therefore, spending now to have a professional draw up your will can save serious money in the future.

For further advice and guidance, please contact the team at Purely Probate on 01458 850146 or email: info@purelyprobate.co.uk