LGBTQ+ estate planning in practice: We’ve come a long way, but are not there yet
I have often heard it said, sometimes by the media and sometimes by other people in my industry, that the law has finally caught up with LGBT relationships. Whether it be those who bemoan the need for Pride marches or those who view equality as achieved. We have equal marriage, protection under the Equality Act, and a growing body of case law that reflects LGBT families more accurately than ever before. However, when I sit down with my LGBT clients to talk about Wills and estate planning, a different picture tends to emerge. It is in the details, the definitions, the assumptions, and the gaps in legislation that problems arise.
The average client
One of the most important things I’ve learned as an LGBTQ+ specialist is that there is no such thing as a “standard” estate planning scenario. That might sound obvious, but we have spent our careers using templates and precedents. Those precedents are built around out-of-date legislation and more common family structures. However, LGBT clients don’t fit neatly into those boxes.
Intestacy
Intestacy often does not align with an individual’s life and wishes for the distribution of their estate. However, for LGBT people, it can produce outcomes that feel not just unintended but fundamentally wrong. The rules remain focused on spouses, civil partners, and biological relatives. Cohabiting partners are excluded, and LGBT people are statistically more likely to cohabit. Chosen family is invisible, and estranged relatives, those who have chosen not to be a part of the LGBT person’s life, may inherit by default. I have had many clients, where without a Will their estate would pass to estranged parents who have rejected their partner, gender, or who they are as a person. It is in those appointments that the importance of a Will becomes very real. As does the importance of the client feeling comfortable disclosing the reality of their family circumstances.
Surrogacy and the timing problem
Surrogacy is an area where the gap between legal and lived reality becomes particularly clear. Until a parental order is granted, the intended parents are not the legal parents. This wouldn’t be a major problem if the Family Court was running smoothly. It is well documented that it can take months to face a Judge, and a parental order can sometimes take over a year.
If something happens during that time, the consequences can be difficult:
The surrogate child could mistakenly inherit from the surrogate
Class gifts are likely to fail
A surrogate may not be paid their expenses
Executors may not be bound to assist with the parental order
The child may be entirely disinherited
Wills should always be part of the surrogacy process and must be drafted by a specialist.
Guardianship and LGBT clients
Guardianship provisions are often drafted quickly, sometimes almost as a formality. When parents are part of the LGBT community and especially when clients are part of the surrogacy process, a guardianship clause is vital. Without it, decisions fall to the Court. And while the Court will always act in the child’s best interests, it is doing so without the benefit of the client’s voice. It may be that a client’s parents are wealthy and experienced in raising children, but estranged from their child. For example, during the COVID pandemic, a lot of trans individuals were buried by their biological families under their birth genders. Ultimately, LGBT people with children should have the same choices about how their children are raised as any other parents, and they require carefully drafted and specialist guardianship clauses to do so.
Polyamorous relationships: Drafting without a framework
Polyamorous relationships present a distinct challenge because, unlike many other areas of LGBTQ+ family life, there is no legal recognition at all. Of course, it is not just LGBT people who are in polyamorous relationships, but non-traditional relationship structures are more common in the LGBT community. There is no equivalent of marriage, civil partnership, or even cohabitation rights that extend to multiple partners. From a legal perspective, the structure simply does not exist. As I have already mentioned, intestacy will not recognise these relationships, and poorly drafted Wills are likely to lead to similar results.
Polyamory brings unique challenges; there can be multiple equal partners living in the same property and contributing to property expenses. There are also more societal challenges with polyamorous relationships; if biological family members become involved in challenging any Wills or intestacy, it can be difficult for multiple partners to have standing in Court claims without being financially dependent on the deceased.
In practice, more specialist planning is often required. Class gifts are often not specific enough, and whilst flexibility is necessary, it can lead to challenges. Perhaps most importantly, it requires careful fact-finding to:
Understand how the relationship operates in reality
Understand how the relationship operates financially
Understand how the relationship operates emotionally
Understand the intentions for the future
Chosen family: Recognition through drafting
Chosen family is a concept that many legal frameworks still struggle to accommodate, but it is a central feature of many LGBTQ+ clients’ lives. Unlike polyamory, the issue here is not the structure’s complexity but the lack of recognition. Under intestacy, friends, regardless of how close they are, do not feature at all. That leaves Wills as the primary mechanism for recognition. Someone who has been a chosen mother, and has raised an individual and set them up for their life, may expect to benefit equally as much as a biological mother who abandoned their child.
This is also where the Inheritance (Provision for Family and Dependants) Act 1975 becomes relevant. While chosen family members do not automatically qualify, they may be able to bring a claim if they can establish financial dependency. That is a fact-sensitive test, and outcomes can be uncertain. Once again, instructions must be taken sensitively, with a full understanding of the complex series of relationships that practitioners may not be familiar with. A well-drafted Will can successfully recognise chosen family. But it needs to do so in a way that anticipates how it may be tested. It is vital that a practitioner is non-judgmental and asks the right questions.
Language matters
For transgender and non-binary clients, estate planning is not just about assets. It is also about being properly reflected in the documents that matter. Ensuring that:
Names are accurate
Previous names are recorded where necessary
Language is both clear and respectful
Are small but important steps. Handled well, they provide clarity. Handled poorly, they can create confusion and, at times, distress. It is yet to be tested by the Court whether a class gift to ‘sons’ that contains a child who has transitioned and has a gender recognition certificate would be disinherited.
Why I think specialism still matters
I don’t think LGBTQ+ estate planning is “more complicated” in a technical sense. It is more nuanced. It asks us to look more closely at family structures, to question assumptions, and to be deliberate in how we draft. Specialist advice is not a barrier; it is a resource. I am always happy to speak to other practitioners to assist with LGBT matters. Whether it’s a quick sense-check or a more detailed discussion, those conversations tend to be collaborative and, ultimately, beneficial for clients. The law has undoubtedly moved forward. But it hasn’t moved evenly. Intestacy rules remain rigid. Tax provisions don’t always reflect modern families. Certain relationship structures are still, effectively, invisible. As practitioners, we can work around those limitations. But there is also a broader conversation to be had about reform. It is about ensuring that relationships are recognised, that children are protected, and that identity is respected.
About the author
Emily Robertson TEP, Senior Associate at Hanne & Co.
Emily Robertson TEP, Senior Associate at Hanne & Co., is an experienced Private Client Solicitor who primarily advises high-net-worth clients, with a focus on entrepreneurs. She specialises in Wills and tax planning for these clients, trying to ensure that they have an effective strategy in place to avoid paying more tax than necessary. She is a part of Hanne & Co.’s team of LGBTQ+ specialist Lawyers, and she won the “One to Watch” award at the British Wills and Probate Awards last year.
