The Marriage (Same Sex Couples) Act 2013 (M(SSC)A 2013) came into force on 13 March 2014, making same-sex marriage legal in England and Wales from 29 March 2014.

The rights of a same-sex married couple are the same as those of civil partners, including:

  • Transfers of assets between them are exempt from inheritance tax
  • Their rights on intestacy are the same as those of a surviving spouse in an opposite-sex marriage and
  • On divorce or dissolution, assets will be divided in the same manner as for opposite-sex married couples

On 10 December 2014, legislation came into force allowing civil partners to convert their civil partnership to a marriage. On conversion, the civil partnership will end and the marriage will be treated as having come into effect on the date the civil partnership was originally formed.

Important amendments to the Wills Act 1837 also came into effect on 10 December 2014, including clarification as to how converting a civil partnership to a marriage affects the couple’s Wills.

How Does Same-Sex Marriage Affect My Will?

If you are not already in a civil partnership when you marry, the normal rules apply and marriage will revoke your existing Will (unless that Will has been made in contemplation of the marriage).

If you are already in a civil partnership and convert that civil partnership to a marriage, the recent changes to the Wills Act 1837 confirm that:

  • Any Will made before the conversion will not be revoked by the conversion
  • Conversion will not affect any disposition made in the Will

General impact on Wills and trusts

The term ‘spouse’ is frequently used in Wills trusts. For Wills and Trusts made before M(SSC)A 2013 came into force, references to a marriage or someone being married will not be taken to refer to same-sex marriage. But for documents made after that date, such references will be read as including same-sex spouses (unless the document specifically provides otherwise).

In view of the changes introduced by the M(SSC)A 2013 we recommend that Wills and Trusts created before the introduction of the Act are reviewed, to ensure that they still achieve the result intended.

Possible pitfalls include:

  • Unexpected tax consequences
  • Unwitting inclusion or exclusion of beneficiaries

If you think this may affect you and would like further advice, please contact any member of our Tax, Trusts and Estates team: Call Edward Pennington on 01483 302 000 or email edward.pennington@rhw.co.uk