According to 2021 census data, 3.2% of the respondents identified within the LGBTQ+ spectrum, while 0.5% revealed that their gender identity differed from their sex registered at birth. These statistics emphasise the importance of understanding and addressing the concerns of the LGBTQ+ community. They are undoubtedly among your client base and could be a significant source of work.
The process of preparing wills and lasting powers of attorney (LPAs) is important for everyone but it is crucial to address the specific considerations that arise when advising LGBTQ+ clients.
One aspect of advising LGBTQ+ clients is recognising and respecting chosen pronouns and titles. This may seem a small detail but it can have a significant impact on how comfortable and valued your clients feel during the estate planning process.
Asking about pronouns and titles is a simple way to show clients that you respect their gender identity and expression. When you introduce yourself, consider sharing your own pronouns and asking your client what pronouns they use. You can also ask if they have a preferred title, such as ‘Ms’, ‘Mr’, ‘Mx’ or something else entirely.
It is important to remember that not all LGBTQ+ individuals use binary gender pronouns. Some may prefer gender-neutral pronouns such as ‘they’, ‘ze’ or ‘xe’. If you’re not sure which pronouns to use, do not be afraid to ask your client directly. Using the wrong pronouns can be hurtful and make your client feel unsupported.
In addition to asking about pronouns and titles, you can also make sure that your forms and documents are inclusive and respectful of LGBTQ+ individuals by using gender-neutral language throughout your materials.
Approach all clients without any preconceived notions about their relationships; people coming in to see you together could be spouses, partners, friends or family members. Assuming that they are a couple could be insensitive or inappropriate. Similarly, assuming that they are related by blood or legal ties could be inaccurate and may not reflect the reality of their relationship. By asking clients sensitively about their relationship, you can also ensure that advice and guidance is relevant to their specific circumstances and helps to create a more welcoming and inclusive environment.
For many LGBTQ+ individuals, the legal recognition of their relationships may not reflect the depth of their emotional bonds or the realities of their lives. Ethically non-monogamous relationships (ENM relationships) are becoming more accepted within society as a whole and have long been accepted within the LGBTQ+ community. These relationships may involve multiple individuals and can take many forms including polyamorous relationships, open relationships or casual dating.
When it comes to wills and LPAs, ENM relationships can make things particularly complex, as they may involve multiple individuals with different legal relationships to each other. This can make it challenging to ensure that each partner’s interests are protected in the event of death or incapacitation; if this is not considered carefully it may lead to claims from competing beneficiaries for provision.
Gender recognition is an important issue. The Gender Recognition Act 2004 provides a legal framework for individuals to have their gender legally recognised, allowing them to obtain a Gender Recognition Certificate (GRC) which enables them to be treated as their acquired gender for all legal purposes. At present you can only apply to be recognised as male or female; non-binary genders are not legally recognised in the UK.
The process of obtaining a GRC can be time-consuming and expensive. It may also require medical evidence of transition, which can be difficult for some people to obtain.
Having, or not having, a GRC can have a significant impact on wills and LPAs. If a transgender individual’s gender is not legally recognised, they may be misgendered in legal documents or their wishes may not be respected by family members who do not recognise their gender identity.
Family conflict and estrangement can have a significant impact on estate planning for LGBTQ+ individuals. For many LGBTQ+ individuals, coming out can result in rejection and ostracism by their families, and even disinheritance.
There is wide potential for claims arising under the Inheritance (Provision for Family and Dependants) Act 1975 for LGBTQ+ clients. This includes claims from partners where the client is not married or in a civil partnership, inadequate provision for dependants, and claims from estranged family members. Legal professionals working with LGBTQ+ individuals should be aware of the potential for claims and take steps to help clients mitigate this risk to ensure that their wishes are carried out, while also ensuring that their clients remain compliant with the law.
Transgender clients who are beneficiaries in a will may be referred to by their birth name and/or previous gender. If the will was executed after 4 April 2005 and the person has been issued with a GRC, then if they are referred to by their previous name in a will that pre-dates the GRC this will not affect the validity of the gift to them. However, consideration needs to be given to gifts that are gender specific, for example a gift to ‘my eldest son’ where your client’s acquired gender means they are no longer the eldest son, will not benefit them.
It is important for legal professionals working with LGBTQ+ clients to be aware of the complexity of the issues which can arise and the significant potential for disputes if not carefully handled. For this reason, I would advocate that law firms with a private client practice prioritise regular training on LGBTQ+ issues. Carefully tailored guidance and support from private client solicitors to LGBTQ+ clients as they navigate the legal landscape surrounding gender recognition, relationships and estate planning could make all the difference.
Kirsty Limacher is a private client partner with Nexa and chief legal officer at Solicitors for the Elderly.
