Same sex couples without Wills

If someone in a same sex relationship and living in Singapore passes away without a Will the legal situation is quite clear. The law treats him/her as single when he/she passed away.

If a person were to pass away in Singapore without a Will his/her estate falls under the Intestate Succession Act (Cap. 146).

Married same sex couples

It makes no difference even if the same sex couple have been legally married overseas.

If a person legally married to another person of the same sex overseas were to pass away whilst resident in Singapore he/she is still treated as a single.

Women’s Charter (Cap. 353)

Marriage law in Singapore is set out in the Women’s Charter.

It was enacted in the 60s “to provide for monogamous marriages and for the solemnization and registration of such marriages…”.

Section 12 of the Women’s Charter

Section 12 (1) says :

“A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void”.

Under Singaporean law a same sex couple who marry overseas are deemed to have entered into a ‘void’ marriage.

Children of a same sex couple married overseas

Under the Intestate Succession Act (Cap. 146) the term ‘child’ is limited to someone who is ‘a legitimate child’ or a child adopted under Singapore, Malaysian or Brunei law.

Even if the child’s parents are lawfully married to each other in a same sex marriage overseas that child is still not considered  ‘legitimate’.

That child is not considered legitimate as his/her parents are in a ‘void’ marriage under Singapore law.

In any case, the child’s biological parents are unlikely to be married to each other. So the child cannot be considered legitimate for that reason either.

However, if the child has been lawfully adopted under Singaporean law then he/she could be considered a ‘child’ able to inherit under the Intestate Succession Act.

UKM v. Attorney-General [2018] SGHCF18

The Singapore Supreme Court recently granted the application of the gay man to adopt his own biological son in UKM v Attorney-General.

UKM was in a long term relationship with his partner and they were not married to each other.

UKM’s child can inherit UKM’s estate because of the adoption granted by the court.

If UKM were to marry his partner overseas their child would still not be able to inherit UKM’s partner’s estate.

So who inherits then?

For a same sex couple dying intestate it will be the parents, siblings, grandparents and uncles and aunts of the deceased who will inherit.

Without a Will whether the couple is married to each other or not makes no difference.

Importance of making a Will for same sex couples

With a same sex couple, whether they are married to each other or not they cannot inherit each other’s estate without a Will.

A child of a person in a same sex relationship can only inherit his/her parents’ estate under the Intestate Succession Act if he/she:

  • was lawfully adopted child in Singapore, Malaysia or Brunei; or
  • a biological child of a man/woman who was married (in a different sex marriage) to his/her biological mother/father at the time of his/her birth.

A same sex couples living in Singapore must make a Will.

If a person in a same sex relationship cares about his/her partner/spouse and children then please make a Will. If not the partner/spouse/child is not going to be able to inherit any part of his/her estate.

3 August  2019

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