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Protection of Rights and Assets in a Same Sex Marriage

Protection of Rights and Assets in a Same Sex Marriage

Protection of Rights and Assets in a Same Sex Marriage

Wednesday, 30 November 2016 12:39

By Alfred Ip, Partner and Head of Private Client


Hong Kong laws do not recognize same sex marriages. Same sex couples in Hong Kong may not be entitled to marriage rights and benefits but those who plan ahead can still achieve much of the same ends through proper estate planning.

Issues that one should consider are not limited to the disposition of assets. For example, one should consider planning and directing post-mortem arrangements, accumulating and preserving wealth for future generations, ensuring the care of children and pets, benefiting chosen charities and protecting loved ones from annoying opportunists.

 

Control over One's Estate
A will empowers one to decide everything from who can inherit specific assets like heirlooms to who can care for one's beloved children and/or pets.

Without written directions in a formal will, assets will be distributed in accordance with the Intestate Estate Ordinance, which may not be the way that one wishes assets to be distributed. The intestacy rules can be complicated as they depend upon one’s place of residence as well as the nature of one’s assets.

 

Case
Ben Keating is a UK banker who came to Hong Kong twenty years ago. His only living relatives are his aging mother in the UK who lives in the same home that Ben grew up in and his brother. Ben’s mother gifted her residence to Ben and his brother ten years ago. Ben owns his residence in Hong Kong.

Jerry Wong is from Hong Kong.

Ben and Jerry met ten years ago and fell in love. Jerry moved in with Ben five years ago. Suppose Ben passed away tragically after a car accident, leaving no will.

In the UK, the spouse of a deceased person without children inherits the entire estate of the deceased person. In Hong Kong, the spouse of a married person without issue inherits the first HK$1 million, then the estate is split into half: the surviving spouse inherits one half and the deceased’s parents/siblings share the other half. Under these circumstances, can Jerry inherit Ben’s estate?

If Ben was domiciled in the UK, the UK intestacy rules would apply to all his personal and real property except for his Hong Kong property. Jerry could inherit all of Ben’s cash (personal property) but would not inherit Ben’s Hong Kong residence. As the closest living relative, Ben’s mother would inherit the property in Hong Kong. Jerry would co-own the UK residence along with Ben’s brother.

If Ben was domiciled in Hong Kong, the Hong Kong intestacy rules would apply to all his personal and real property except for his UK property. Jerry would co-own the UK residence along with Ben’s brother. Ben’s mother would inherit all of Ben’s cash and his Hong Kong property.

Suppose Ben adopted a son last year. Although Ben and Jerry co-parent the child and the three of them lived together as a loving family, Ben had to adopt the child as a single parent in Hong Kong.

Ben’s son is the only person entitled to Ben’s estate in the event of the latter’s death. Ben was the only legally recognized parent in Hong Kong and the child would officially become an orphan. Jerry would have no rights, even though he is the child’s loving father.

The above scenario illustrates just a few of the painful ramifications if one is in a same sex marriage and passes away without a will in Hong Kong.

 

Providing for a Life Partner
A will is important for those in same sex relationships, particularly if one partner is financially dependent upon the other partner. Unfortunately in Hong Kong, dying without a will leaves one's life partner/same sex spouse without any legal means to inherit one's assets.

Legal guardians can be appointed to care for children in the event of the death of one or both parents. Without such written directions, the care and control of one's children may be decided by the authorities. This is particularly important when the relationship with one's life partner is not recognized in law.

If children require special care (such as ongoing medical needs), it is advisable to appoint financial guardian(s) to ensure that one's wealth will be properly managed to maintain such special needs.

 

Supporting Good Causes
One should make provisions in one’s will to benefit favoured charities or causes, rather than leaving excess assets to be distributed in accordance with the rules of intestacy.

 

Overseas Assets
Families often have multi-jurisdictional assets in their portfolios. The administration of such assets is not always straight forward. Unforeseen issues may arise in administering assets overseas. With proper planning and execution, such complications can be minimized.

 

Opportunists
Affluence attracts opportunists in the form of service providers, distant relatives, friends and even not-so-distant relatives. With a formal written will, one can direct the disposition of one’s assets without opportunists preying upon mourning relatives and friends.

 

OLN estate planning
With extensive experience and a global network of lawyers, accountants and other professionals, OLN addresses clients' estate planning needs in a comprehensive way.