Marriage (Same Sex Couples) Act 2013: how will it affect my estate planning?

Year Published: 2014

The Marriage (Same Sex Couples) Act 2013 (MSSCA 2013) received Royal Assent in July 2013. The Act enables same sex couples to marry under the law of England and Wales and civil partners to convert their civil partnership to a marriage. The topic was the subject of heated debate and divided the Houses of Parliament.

It is important to recognise that for same sex couples, it will have a bearing when they come to make their wills, or if one or both parties decide to set up a trust.

You may have a good idea of how you would like to benefit your family and what type of gifts you would like to make when you have passed on. With new meanings added to terms that we use in our everyday lives, such as spouse, husband, wife, widow and widower, it is important that your will does in fact reflect your true wishes. It is also important to reduce the risk of confusion or difficulty for those acting as your executors.

In the new legislation, ‘husband’ will include a man married to another man, ‘wife’ will include a women married to another woman, “widower” will include a man whose marriage to another man ended with the other man’s death and “widow” will include a woman whose marriage to another woman ended with the other woman’s death. There are also implications for treatment of children who are born to married women who are in a same sex marriage. The common law presumption that a child born to a woman during her marriage is also the child of her husband and is not extended to apply to the other woman to whom the mother is married.

This particular act will not have any relevance for men as a rule, as the common law presumption of legitimacy can only apply to children born to women, however it may apply if the married men had children prior to the same sex marriage. The position is more complex for men as they are only assigned all the rights and responsibilities for a child if they are either married to the mother or the mother agrees to him being registered as the father (if unmarried). A father can also obtain parental responsibility if he enters into a ‘parental responsibility agreement’ with the mother or if he gets a court order (if the mother disputes this).

Two married men who use a surrogate mother to produce a child, would have their parentage governed by the Human Fertilisation and Embryology Act 2008.

When considering estate planning, it is important that you consult with a solicitor who will be able to advise you fully on the implications of this legislation and use appropriate care to draft your will or trust documentation to ensure compliance with the legislation, whilst ensuring that it meets your individual requirements.

If you are considering making a will or setting up a trust and would like any information on this topic or any other matter, please contact Helen Kelly in our Trusts team on 0161 475 7685.

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