How Does Will Protect The Interests of Same-Sex Couples?

Marie and Pakhi have been in a same-sex relationship for 8 years and have raised 2 children, Riya and Harsh. On paper, legally, each of them has adopted one child because same-sex partners have not been given any adoption rights. Every time they fill in any form for their children, they have to fill in each other’s name as a friend or a guardian, but not as a parent. People belonging to the LGBTQ+ community have been kept untouched by several rights that directly affect their succession rights. This aspect of legal invisibility in family and succession matters seems to expose same-sex couples and their children to family disputes and exclusion from inheritance without adequate protection of legal regulations.

Rights which same-sex partners don’t have in India:

1. Marital Rights:

Same-sex marriage has not been made legal in India. Decriminalization of Section 377 of the IPC has only allowed them their privacy, yet their relationship stands no legal status. Such gender nonrecognition means that within the existing person laws, same sex union is denied the right to claim the spousal benefits, including the succession rights.

2. Adoption and Surrogacy Rights:

Individually, a person can adopt or surrogate a child, but same-sex partners as parents can not. This parental right is only given to heterosexual couples.

A question that generally strikes in mind is how does this all matter, even if one person can opt for having a child, his/her partner will eventually raise that child as well, after all, it is love that matters, isn’t it?

Yes, it is love that matters, but in the long run, you want financial security for your children, too. Many people who are in same-sex relationships don’t realize that they have not been granted any Succession Rights against their partner and children. The existing regulations under the Central Adoption Resource Authority (CARA) limit adoption rights only to individuals, excluding unmarried or same-sex couples from joint adoption. This restricts parental rights and legal protections for the LGBTQ+ family.

How does succession law work in the case of same-sex couples?

Let’s understand this with the above case study:

1. Legally, Marie is the mother of one child, Riya, and Pakhi is the mother of another child, Harsh. Suppose Marie dies due to any reason, only Riya will be eligible to have a share in Marie’s property and not Harsh.

1. Moreover, even Pakhi, her partner, will have no right of inheritance in Marie’s property as they are not married, and even their marriage is not legal in the eyes of the law. This means that a surviving partner and a non-biological child can be completely disinherited, despite their familial bonds. Instances have been reported in which same-sex partners have to legally contest inheritance because of the lack of recognition of their marriage.

1. When it comes to the inheritance of one’s property, no legal heir will drop their claim. This has been seen so far, and the reason behind this is that at present, 62% Indians, and especially parents in India, don’t accept the same-sex relationship of their children. 

What Can Same-Sex Partners Do to Secure Their Partner and Children’s Rights?

On paper, Marie and Pakhi are mothers to Riya and Harsh, respectively, but they love both children equally and even want to secure the future of both children financially. They have been denied some very basic rights, but here is how they can secure the future of their partner and children. In the absence of any legal recognition of their relationship, safeguarding the future of their family financially requires proactive legal tools, such as writing a Will.

How can writing a Will help them?

A person in a same-sex relationship can write a Will and make anybody a beneficiary, even though they don’t have any marital and family planning rights under the law. If Marie writes a Will, she can make Pakhi, Riya, and Harsh, all three of them the beneficiaries, and support them financially even when she is no longer around. The Law of Wills does not discriminate and provides solutions to all your worries regarding who should get your property after your death.

The Will steps in as the best possible legal solution for same-sex couples to protect their rights of inheritance and those of their partner and children from the testator—filling the gaps left by the loss of marriage or adoption rights. A carefully prepared Will ensures that the wishes of the deceased are fulfilled and honored, as well as lessens the chances of dispute or disinheritance.

Common FAQs Related to Wills of Same-sex Couples

Q: Is a Will subject to contest by the legal heirs in the case of the Will naming a partner of the same sex as legatee?

A: Yes, a Will under Indian law can be contested by the legal heirs, but only on valid grounds. The Indian Succession Act, 1925, recognizes different grounds under which a Will may be contested, such as lack of testamentary capacity, undue influence, fraud, coercion, or improper execution. The principle of testamentary freedom gives the right to the person to distribute his properties as they wish, which includes naming his same-sex partner as a beneficiary, and in such cases, the courts generally uphold such a Will if they are properly executed and free from coercion or fraud. This guarantees strong protection to the same-sex couple in naming each other and their children as beneficiaries in their Wills against arbitrary disinheritance.

Q: Does writing a Will impact the rights of biological children? A: A Will allows the testator to distribute assets as they choose, including providing for both biological and non-biological children equally. While heirs under intestate succession laws (without a Will) have automatic inheritance rights, a Will overrides this by legally allocating property based on the testator’s wishes. This flexibility is crucial for same-sex couples where biological parentage may be legally distinct, but emotional and caregiving bonds are equal. For example, Marie can provide for Riya and Harsh equally in her Will, bypassing adoption and biological parenthood limitations.

What can AasaanWill contribute to Will-drafting by same-sex couples?

AasaanWill offers an affordable and professional platform to draft Wills, tailored to the special needs of couples in same-sex relationships. They make sure that Wills are in line with the Indian laws and that they address particular concerns like naming partners and children as their beneficiaries, appointing testamentary guardians, and clearly specifying how the assets will be divided. This minimizes the chances of conflicts and ensures that your estate planning accurately reflects your honest desires. By simplifying the complex legal process of Will drafting, AasaanWill empowers LGBTQ+ people to secure their families’ financial and legal futures effectively. 

Thus, in conclusion it is apparent that while many of the legal challenges faced by same-sex couples in India remain unsatisfactory in respect of their rights to marriage, adoption and succession, the drafting of a Will provides a vital legal remedy to establish financial security for partners and children, demonstrating that even where there is no formal recognition, love, and family connections sustain themselves by means of proper planning of estate.

You can write a Will online with AasaanWill, which is legally vetted, valid, easy, and affordable. AasaanWill. Zaroori Hai!