Same-sex couples face many barriers in Hong Kong, but writing a will can offer some legal protection

Hong-Kong-Same-Sex-Couple.jpg

Photo: Thinkstock

For same-sex couples, life in Hong Kong isn’t easy—unlike in some other places, gay marriage is not legal and overseas marriages, civil partnerships and unions between LGBT couples are not recognised.

That lack of official recognition affects many aspects of life. Adopting a child as a same-sex couple is off limits. Those relocating from overseas aren’t eligible for dependant visas. Gay couples must file separate tax returns and cannot claim the tax breaks granted to legally recognised couples. And the list goes on.

But there is one area where those in same-sex relationships can find some legal protection: estate planning.

It might not guarantee the same benefits and rights enjoyed by legally recognised couples, but a carefully drafted will can achieve many of the same outcomes, says Alfred Ip, a lawyer at Oldham, Li & Nie.

In fact, many people underestimate what can be achieved through a will, simply viewing it as a way to articulate how their assets are to be distributed when they die. A written will certainly fits that purpose, but it has many other advantages that Ip says same-sex couples should consider.

This legal document gives you the power to decide everything from the inheritance of specific assets like heirlooms to who will care for children and pets, Ip says. “Estate planning is not only about who will inherit your estate, it is also about protecting your spouse and family.”

“Estate planning is not only about who will inherit your estate, it is also about protecting your spouse and family.”

A will can serve many purposes, but it still remains the only way for same-sex couples to leave an heirloom legally. “Making a will constitutes the only way to leave a bequest, and it is advisable to retain an estate lawyer to draft a will in order to ensure that the will is valid and enforceable,” Ip says.

Yet estate planning isn’t a top priority for most of us—it does, after all, force us to consider our mortality. Those who do take action, however, will be rewarded with the knowledge that their assets will be distributed according to their wishes. Those who don’t may see their assets distributed in accordance with the Intestates’ Estate Ordinance, a rather complicated set of rules that takes into consideration the place of residence and nature of assets.

Ip notes that drafting a will can go a long way towards making the lives of your loved ones easier. “We are currently handling many estate disputes that could have been avoided with a simple, properly drafted will.”

He adds that families often have multi-jurisdictional assets in their portfolios and administering them is not always straightforward. There can be unforeseen complications involved with overseas assets but Ip notes that they can be minimised with proper planning and execution.

In Hong Kong, a will is all the more crucial for those in same-sex relationships where one partner is financially dependent on the other. In that case, if there is no will, it effectively means there is no legal basis for a person to inherit their life partner’s assets. The surviving spouse of the deceased stands to inherit by default the first HK$1 million of the estate and half of what remains in a legally recognised union. But for same-sex couples, the surviving partner would not be entitled to anything.Same-Sex-Hong-Kong-Estate-Planning.jpg

Photo: Thinkstock

For those raising adopted children in Hong Kong, preparing a will is also essential. While technically, Hong Kong doesn’t allow the adoption of local children by two adults of the same sex, couples usually work around this limitation by applying as single parents. 

But it can leave them in a precarious position because the adopted child would effectively become an orphan if anything were to happen to the legal guardian. In the absence of any written directions, the child’s fate would be decided by the authorities. In a will, however, legal guardians can be appointed should anything happen to one or both parents.

A will also has more general benefits, such as helping to keep opportunists at bay. “With a formal written will, one can direct the disposition of one’s assets without opportunists preying on mourning relatives and friends,” Ip says.

Same-sex couples should also consider other areas where they can put their wishes in writing. Unlike in other jurisdictions, there is no lasting power of attorney, advance healthcare directive or similar in Hong Kong that allows others to make medical decisions on your behalf if you can no longer make them for yourself. Ip advises those in same-sex relationships to spell out in writing that they want their partner making such decisions for them.

“This holds especially true if their relationship is not recognised by their respective families,” he adds.

See also: Millennial Money: The Future of Finance