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LGBT+ History Month: The evolution of inheritance equality

Posted on 2 February 2024

The journey toward inheritance equality for LGBTQIA+ individuals in the United Kingdom is a testament to the transformative power of law. This article provides a detailed exploration of the historical advancements for same-sex couples and the nuanced challenges faced by transgender individuals in the realm of wills and inheritance.

The early struggles: pre-21st century

Historically, same-sex relationships were not only socially stigmatized but also legally invisible. This had an impact in situations where people died intestate, i.e.  without having made a valid will. In such cases, their estate is distributed according to the rules of intestacy, which are set out in law. These rules did not recognise same-sex relationships, meaning that the surviving partner was not seen as having any legal rights to the deceased's estate and had no automatic right to inherit, regardless of the length or commitment of their relationship.  The absence of legal recognition left many bereaved partners without a home, possessions, or financial security, a stark contrast to the rights automatically afforded to heterosexual spouses.

It also left same-sex partners without the benefit of the spousal exemption for Inheritance Tax that was introduced in 1972, meaning that they were liable for more inheritance tax than a heterosexual couple in the same position.

Case law: limited protection

Before the turn of millennium, case law offered little protection for same-sex partners. One of the few exceptions was the case of Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, where the House of Lords recognized a same-sex partner as having the right to succeed a statutory tenancy. This was a landmark decision, acknowledging that the concept of a 'family member' could extend beyond traditional heterosexual relationships.

However, it still did not acknowledge that the couple had a spousal relationship nor were they seen as living together as a husband or wife. Therefore, whilst a huge milestone, Fitzpatrick did not improve the intestacy, or inheritance tax position of same-sex couples.

The Civil Partnership Act 2004

The introduction of the Civil Partnership Act 2004 was a watershed moment for same-sex couples in the UK. For the first time, it allowed same-sex partners to obtain legal recognition of their relationship, which brought with it a range of rights and responsibilities akin to marriage, including inheritance rights.

Under the Act, civil partners were granted the same rights as spouses in terms of inheritance tax. This means if a person died intestate, their civil partner was entitled to inherit under the rules of intestacy, just as a spouse would. Additionally, assets could be passed on to the surviving partner without incurring the inheritance tax that would otherwise apply to transfers between unmarried couples. The Equality Act 2010 was another significant step forward, consolidating and strengthening anti-discrimination laws. While not directly altering inheritance rights, the Act created a broader context of legal equality, which helped to support the case for same-sex marriage.

The Marriage (Same Sex Couples) Act 2013

The Marriage (Same Sex Couples) Act 2013 was a historic piece of legislation that allowed same-sex couples to marry in England and Wales, putting same-sex married couples on an equal footing with opposite-sex married couples in all legal respects, including inheritance rights.

With the legalisation of same-sex marriage, the intestacy rules did not change but rather extended the institution of marriage to same-sex couples, reinforcing the social and legal understanding that same-sex couples have the same rights as opposite-sex couples when it comes to inheritance and other legal matters.

Following the legalisation of same-sex marriage, there have been several cases that have tested the application of inheritance rights for same-sex couples.

One such case is Walker v Innospec Limited and Others [2017] UKSC 47, where the Supreme Court ruled that a same-sex spouse was entitled to the same pension benefits as would be granted to an opposite-sex spouse. This case was significant in ensuring that the principle of non-discrimination was upheld in the realm of survivor benefits, an important aspect of inheritance rights.

The lingering challenge: gendered language in wills

While marriage equality has been a monumental achievement, LGBTQIA+ individuals may still face challenges when it comes to gendered language within wills. This is particularly pertinent for transgender and non-binary individuals, where the language of legacy can become a legal labyrinth.

Gendered Terms such as "son," "daughter," "his," and "her" have been traditionally used in wills to identify beneficiaries but these terms can create ambiguity and legal challenges when a beneficiary's sexual or gender identity does not align with the gendered language used in the will. For example, if a will leaves a bequest to "my son and his wife," questions arise if the son is married to a man. Similarly, if a will refers to the "eldest son," and the testator's eldest child transitions it is unclear who would be considered to be the "eldest son". Traditionally, courts have adhered to the principle of literal interpretation, applying the plain meaning to the words of a will, and thanks to the Gender Recognition Act 2004, which provided a legal mechanism for transgender individuals to have their acquired gender formally recognized. While the Act does not address wills directly, transgender individuals with a Gender Recognition Certificate should be recognized in their acquired gender for all legal purposes, including inheritance. However, cases such as Re Sigsworth [1935] 1 Ch 98 and Perrin v Morgan [1943] AC 399 demonstrate that this principle of literal interpretation is not absolute and that the courts may consider the testator's intent and public policy when interpreting wills.

The modern legal approach prioritizes the testator's intent, as demonstrated in Marley v Rawlings [2014] UKSC 2. This case underscored the importance of interpreting a will in a manner that reflects the testator's wishes, even if the literal wording might suggest a different meaning. This may be crucial when determining whether a same-sex spouse, or transgender child can inherit under a will that does not use the appropriate gendered language.

In response to these challenges, there is a growing trend towards using gender-neutral language in will drafting. This shift not only respects the diversity of gender identities but also aims to prevent the disinheritance of beneficiaries due to gendered language misalignment.


The historical overview of inheritance rights for same-sex partners and the challenges of gendered language in wills for transgender individuals are intertwined stories of societal change and legal advancement. They reflect the broader struggle for LGBTQIA+ rights and the ongoing pursuit of equality.

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