Comment: Those in civil partnerships need to be aware of what happens to wills

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For many people the last thing on their mind when they enter into a civil partnership will be dying. After all, ‘til death do us part’ aside, it’s a bit of a downer when you’’re all loved up and having a party. At the same time, for others, a desire to ensure that the surviving partner is protected when the other one dies is the main, if not the only, motivation for entering into a civil partnership.

Either way people rarely read the small print. And in particular recent research suggests that very few people are aware that on entering a civil partnership all wills are immediately revoked. (For those who like reading statutes, see: the Wills Act 1837 section 18B (as inserted by the Civil Partnership Act 2004 section 71 Sch 4 Pt 1 para 2).

The simple reason for this is ‘equality’. Wills are revoked by marriage and the Civil Partnership Act mirrors almost identically all the rules relating to marriage.

Why does this matter? Well, there are a number of reasons.

Many gays and lesbians who were in relationships before civil partnerships were introduced had written wills. Unlike straight people, they knew only too well that the law would not recognise their partners on death and writing a will was an effective way of addressing this. Many of these couples think that subsequently entering a civil partnership simply adds to the protection provided by a will.

This would be understandable as the tragic stories of surviving partners losing their homes and being treated in appalling ways by their partner’s’ relatives played an important part in the arguments for introducing civil partnerships. But while a civil partnership does enable partners to be exempt from inheritance tax, without a will the intestacy laws apply and under these rules a surviving civil partner does not necessarily inherit everything. In other words the surviving civil partner may have to share the estate with the deceased partner’’s family.

Where the estate is relatively small in financial terms the surviving partner will inherit everything under the intestacy rules. But even here there may be a problem for civil partners who had wills before getting hitched. Some civil partners may wish to keep their finances separate. Alternatively, they may wish to acknowledge other people alongside their partner by way of small gifts or mementos. Recent research suggests that for gays and lesbians, friends and children of friends are included in wills far more so than in straight people’’s wills. As the writer Armistead Maupin noted, for many, these people are their ‘logical’ family as opposed to their ‘biological’ family. And even when biological relatives are acknowledged people often wish to discriminate between siblings on the basis of assessments of needs or degrees of connectedness.

In short, while the intestacy laws (what happens when you don’’t have a will) are ‘off-the-peg’ rules written with the conventional nuclear family in mind, wills on the other hand are tailor made and enable you to be pretty much as queer as you like. So if you are in a civil partnership and you think your old will is still valid: don’’t get caught out by the will revocation rule, make a new will. And whatever your motive for entering a civil partnership, and perhaps especially if you’’re not in a relationship, remember the intestacy rules really aren’’t designed for us!

Daniel Monk is a legal academic based at Birkbeck, University of London. Recent articles include: ‘E M Forster’s will: an overlooked posthumous publication’ (2012); ‘Sexuality and Succession Law: Beyond Formal Equality’ (2011). For further information email: [email protected]