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Legal 500, 2022
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The impact of gender transitioning: Wills
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The fact that a person’s gender has changed does not affect the distribution of property under a Will or Trust made before 4 April 2005. However, the distribution of property under a Will or Trust made on or after this date takes effect in accordance with the acquired gender.
To take an example, James made a Will leaving his estate “equally between his two daughters”. James has two daughters Elizabeth and Samantha. After the Will is made Samantha transitions from female to male and changes her name to Samuel and obtains a gender recognition certificate. If James made his Will before 4 April 2005, then Samuel would still be recognised by what is on his birth certificate, so he would still inherit. However, if James’s Will was made after this date, then the estate would pass solely to Elizabeth.
It is important that a Will is drafted to avoid any unintended consequences.
The impact of gender transitioning: domicile
This is important because it determines a person’s tax status and succession rights. A child acquires a domicile of origin at birth. If the child’s parents are married at the time, then the child takes his or her father’s domicile. If the parents are unmarried, then the child takes his or her mother’s domicile. These rules can cause difficulty where a child has two female parents or is born by a surrogate to two male parents.
Co-habiting couples, civil partnerships & marriage
Those identifying as single may live with a partner and in fact the statistics showed that in 2019 same-sex cohabiting couples were the most common type of same-sex couple family.
At present the intestacy rules, which take effect if you do not leave a Will, do not recognise co-habiting couples. Therefore, your surviving partner will have no automatic right to inherit your estate. They may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if no provision has been made for them, but this will be time consuming and expense. It is therefore important for co-habiting couples to look at such matters as putting in place a cohabitation agreement, checking how they own their assets and making Wills.
By making a Will you can appoint executors of your choice and leave your assets as you wish.
You can also appoint guardians to look after your minor children. In order to appoint a guardian you must have parental responsibility for the child. An LGBT+ person may already have a child or want to become a parent and may decide to foster or adopt a child or have fertility treatment or through surrogacy. The rules regarding who has parental responsibility in such situation can be complex and need to be considered carefully.
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