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Rights to Property, Benefits and Pensions
Property rights
Civil Partnerships
The Civil Partnership Act 2004 (‘CPA’) means that civil partners now have the same rights as married couples to enter and occupy the family home, to succeed in a tenancy upon the death of a partner, and be treated as a partner for housing and other housing related benefits.
Civil partners are also recognised as next of kin under intestacy rules on the same basis as married couples. If a civil partner dies without making a will, their estate up to a specified sum, and half the share over that specified sum, is transferred to their surviving partner. Even if you have entered into a civil partnership it is still advisable to make a will, since this allows you to transfer the totality of your property, or such proportion as you deem appropriate, to your partner. Pre-existing wills are revoked on entering into a civil partnership, therefore new civil partners are advised to make new wills.
Civil partners are exempt from inheritance tax on the same basis as married couples.
Non Civil Partnerships
In general non-civil partners, who are not on the tenancy agreement, have no right to stay in the family home if the relationship breaks down.
If your partner dies you have the same right to succeed a tenancy as heterosexual non-married couples living ‘as if they were man and wife’, if you were living as if you were civil partners. The position of non-civil partners was strengthened by the European Court of Human Rights in Karner v Austria (2003) which held that a surviving same sex partner, who had lived with his partner and contributed to expenses, was entitled to succeed to the tenancy under article 8 (right to private and family life) and Article 14 (prohibition of discrimination) of the Convention. A similar approach was adopted in the UK by the House of Lords in the case of Ghaidan v Mendoza (2004) which held that the term ‘spouse’ should be interpreted so as to include a survivor of a same sex partnership. This allows the survivor of a same sex relationship to succeed to a tenancy on the death of his or her partner, on the same basis as married, and non-married but co-habiting, survivors of a heterosexual partnership. This position is now reflected in the CPA.
It is always advisable to make a will. In the absence of a will, there is no entitlement to the deceased partner’s estate under the laws of intestacy. Therefore you will not be automatically entitled to anything unless you are a joint owner of the property.
If you feel that any provision made under a will or the intestacy rules fails to adequately provide for your financial needs you can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for ‘reasonable financial provision’. In order to make a claim you will have to show that you have been living in the same household as the deceased and living ‘as if civil partners’. If you do not fulfill this requirement then the only other possible claim that you could make is if you have been ‘maintained, either wholly or partly by the deceased’.
Non civil partners are not entitled to relief from inheritance tax, which is currently 40% on property valued over a specified sum. This applies to all property transferred, including that transferred under a will.
Welfare Benefits and Pensions
Civil Partners
The Civil Partnership Act 2004 (‘CPA’) provides that same sex partners who register as civil partners will be treated the same as a married couple for the purposes of social security benefits, child support and tax credits.
Pension legislation has largely been amended to allow for surviving civil partners or dependents of deceased civil partners to benefit as any reference to spouse or marriage will be read to include civil partners or civil partnerships.
Non-Civil Partners
Due to amendments introduced by the CPA, those who are living together ‘as if they were civil partners’ are treated for the purposes of social security benefits as heterosexual unmarried couples ‘living together as husband and wife’. This means that if you are receiving income related benefits and live with someone, you will be treated as a couple even if you are not in a civil partnership.
A surviving non-civil partner will only qualify for a survivor’s pension only if he or she were financially dependent on the employee, on the same basis as non-married heterosexual couples.
