Wills for Same Sex Couples

I want to begin this article by stating that I consider myself apolitical. The processes around politics seem to me a negative-sum game for the incompetent, the punchable and the lost. I vote with pragmatism and disloyalty.

Notwithstanding, some of you may remember old Etonians, David Cameron and George Osbourne. What you probably recall about this pair, is the joie da vivre with which they de-funded the NHS, and got us kicked out of the EU (by way of an update their good works continue in the private sector – for Greensill Capital in the case of David C and for Russian Oligarch, Evgeny Lebedev, in the case of George O).

What you may not recall, is that Osbourne, in a characteristic flight of ‘who’s side are you actually on … ery’ – managed to introduce the Resident’s Nil Rate Band. A piece of Inheritance Tax law that one might generously describe as: ‘superficially not homophobic’. In this article we’re going to talk about Wills for same sex couples and what this change meant.

Here’s how it works. As of 2015, if you own a house and you leave it to a direct descendent i.e. a child, you can attain a boost of up to approx. £175,000 to your (de-facto) inheritance tax ‘exemptions’ (known as your Nil Rate Band). This can take your individual Nil Rate Band up to a maximum of approx. £500,000, i.e. you pay no inheritance tax until you gift more than this amount by your will. If you are married, when you die, this exemption may be transferred to your spouse giving them a total (de-facto) exemption of up to £1,000,000. 

So why is this rule unfair to same sex couples? Using census data, such as that available to Cameron & Osbourne during formulation, discrepancies begin to appear. 

  1. Only 15% of same sex couples have children (remember you need these to access RNRB), compared to 38% in opposite sex relationships. 
  2. Only 58% of same sex couples are married versus 88% of opposite sex couples (that exemption passes between married couples).
  3. Same sex couples tend to make more money than opposite sex. UK data on this is sparse, Forbes have an approximately 12% difference in house hold incomes. 

I don’t want to bore you with calculations, but when you adjust for all of the above and work out (weighted average) inheritance tax bills for two cohorts of couples (same and opposite sex respectively), with estates of around £1 million and houses of more than the RNRB. The inheritance tax bill across both deaths for opposite sex couples comes in at around £110,00 and that for same sex around £240,000. 

So, what can you do about it? Well, if you’re unmarried, you can look at including an instrument called a ‘Nil Rate Band’ trust in your will. Essentially you set up a discretionary trust naming your partner as a beneficiary, you also name any others you wish to benefit. The effect of this is to keep gifts on first death out of your partner’s estate, for tax purposes, on their own death. 

Over and above this there are various other routes open to you for IHT planning. Structurally these cluster around gifting in various forms and the use of business property reliefs. 

Crucially, there are time limits associated with certain of these approaches, i.e. periods of time that must pass before they take effect, so I urge you to start looking at this now.

If you’d like to discuss any of the issues raised, please speak to our client advice team on 0121 202 4714 or click here and we’ll call you. Don’t wait until it’s too late!

7 things to avoid with your Will

Will Non-exhaustively!

  1. Putting it off. People hate doing it and making a will usually enters our consciousness at a moment of existential horror. It goes against all of our hopes an instincts. If it’s on your radar, and you’ve some momentum, guard it jealously and keep going!


  1. ‘Sideways disinheritance’ is all too common. Mr A and Mrs A are married and have one child ‘Sophie’. Mr A and Mrs A are responsible parents and create mirror wills leaving everything to each other and then to Sophie. Mrs A dies suddenly. Mr A eventually re-marries a lady who has two children from a previous relationship. Sadly, Mr A passes away soon after remarriage, without making a new will. Marriage having revoked Mr A’s will, his entire estate passes to his new wife and Sophie is left with nothing. There is no malintent on the part of Mr A only poor luck. This situation could have been avoided with proper drafting of his original document.


  1. Putting gifts together in the wrong order. Possibly the most common structural problem we see with DIY wills. There is a hierarchy by which gifts are distributed. If you want to leave your house to someone, so that they can actually live in it, you need to make sure the £5,000 gift you’ve left to the dogs’ home doesn’t trigger its forced sale by executors!


  1. Loss of property to care fees. Local authorities are more or less destitute. Delineation of social and health-based care needs is arbitrary and political. A properly drafted will can be used to protect gifts by your will from attack by cash strapped local authorities, should someone therein need late life care. 


  1. Losing your Residents Nil Rate Band (RNRB). Apologies for jargon, RNRB describes £175-£350k of inheritance tax exemption, losing it can cost your beneficiaries up to £140k. You only receive this exemption to the extent an appropriately valued property is left to descendants. Failure to achieve this can occur accidentally e.g. through poorly organised gifts e.g. see ‘3’ or a misworded trust. 


  1. Losing your ‘transferable nil rate band’. This describes the inheritance tax relief that passes between spouses. The risk of its loss speaks to a wider point about inheritance tax exemptions, they are not automatically applied. Clear paper trails must be established for each of a couple’s deaths and exemptions applied for by executors. 


  1. Gifting to pets.  Not in England or Wales, in any case. You can’t give to a pet in your will. A pet is a piece of property here (unlike Singapore, where gifting to animals supports an entire area of niche tax law!)


If you’re considering these issues, I urge you to act now, speak to our client advice team on 0121 202 4714 or click here and we’ll call you