Hong Kong does not yet recognize same sex marriage, so inheritance rights enjoyed by couples elsewhere in a same-sex relationship do not apply here. It is important to be aware that under current law if one partner dies without having made a formal will his/her same sex partner is not automatically entitled to their estate. And any child in the relationship could become an orphan.
However, through proper estate planning same sex couples can enjoy nearly the same benefits as heterosexual couples in Hong Kong, and children of a same sex marriage can be properly protected.
People tend to think that making a will is all about inheritance, but it is much more than that – particularly in the case of same sex couples living in Hong Kong. If you have not made a formal will, under Hong Kong law your assets are distributed in accordance with the Intestate Estate Ordinance, which is unlikely to be in accordance with your wishes.
Take the example of Ben and Jerry Keating. Ben is a banker from the UK who has worked in Hong Kong for 20 years. Ben has only two living relatives – his mother who lives in the house Ben grew up in, and his brother. Their mother gifted the house to Ben and his brother a decade ago. Ben also owns his own apartment in Hong Kong.
Five years ago Ben met Jerry, a local Hongkonger, and they have lived together ever since in a loving same-sex relationship. Should Ben die unexpectedly, leaving no will, Jerry would be left with no legal means to inherit Ben’s assets.
Under UK law, the spouse of a deceased person without children inherits the deceased’s entire estate. Under HK law, the spouse inherits the first HK$1 million, then the rest of the estate is cut in half with the surviving spouse inheriting one half and the deceased parents / siblings sharing the other half.
Therefore, if Ben were domiciled in the UK, under that country’s rules of intestacy – that is, no will – Jerry could inherit Ben’s cash, but not Ben’s HK residence. Ben’s mother, as his closest living relative, would inherit his HK property, while Jerry and Ben’s brother would co-own the UK house.
But, if Ben was domiciled in HK, then HK intestacy rules apply to all his personal and real estate property, except for the house in the UK (which Jerry would still co-own with Ben’s brother). However, Jerry would not inherit Ben’s cash nor his property in Hong Kong, both of which would go to Ben’s mother.
If the same-sex couple have children, the consequences of dying intestate are even more serious.
Ben and Jerry have an adopted son. If Ben dies intestate the only person entitled to his estate after his death is his son. However, since under HK law, a same sex couple cannot adopt a child together, even though Ben and Jerry co-parent the boy, Ben would have had to adopt him as a single parent. This means Ben is the only legally recognized parent, and should he die intestate the child would officially become an orphan because legally Jerry would have no rights.
Make a Will – Now!
In short, in Hong Kong dying without a will leaves one’s same-sex spouse or partner with no legal means to inherit one’s assets. And, unless specific written directions are left, the care of one’s children may be decided by the authorities.
The ramifications of dying intestate are always complicated but for a same-sex couple in Hong Kong they can be desperately serious. Making a clear will ensures that your loved ones will gain their inheritance and your child will be protected.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.