The general idea and benefit of drafting a will is passing on one’s estate to loved ones following a person’s demise.
In cases where a will is in place, it’s neatly wrapped up. But when it is not, the law comes into play and distributes the estate to loved ones, usually spouses, partners, children, parents, etc.
However, constitutionally speaking, there is much to overcome in Hong Kong in recognition of modern love.
Due to rising global campaigning and awareness, more people are embracing their identities, and there’s a rise in the community of same-sex couples in Hong Kong. Similarly, a lot of people are choosing to opt out of traditional marriages and decide to love without legal, societal validation.
Same-sex wills in Hong Kong
However, like most parts of the law, even the ones concerning wills are entirely noncommittal regarding the variations of modern love. Same-sex couples or unmarried couples are offered very little legal protection in Hong Kong.
Unmarried partners have no legal right or entitlement to their partner’s estate during their lifetime or even after their demise. Further, Same-sex marriage or civil partnerships are not even legally recognised here.
So, couples must think outside the box and prepare for themselves and their partners well beforehand. Whether it is by choice or because you are bound to, if you are unmarried and want to secure the future of yourself and your partner, you should have a will in place.
Inheritance and intestacy
Surviving spouse rights are recognised for same-sex couples, but only in the case of marriage.
Under intestacy, a surviving spouse has certain entitlements even if the deceased has not made a will. This generally includes entitlement to a particular portion of the estate and all personal assets and belongings of the intestate. A surviving spouse can also choose to take the marital home as per the entitlement in the estate instead.
The purpose is to give effect to the presumed intention of the intestate as to who should be entitled to share in his estate after death and to avoid rendering the survivor homeless. While the status of the “surviving spouse” is significant, its definition in the statute was confined to the traditional notions of marriage between a husband and wife and excludes same-sex married couples.
However, in a judicial review in the case of Ng Hon Lam Edgar v Secretary for Justice  HKCFI 2412, the High Court ruled that the exclusion of same-sex married couples’ right to claim as “surviving spouses” under the relevant ordinances (IEO and IPFDO) constituted an unlawful discrimination on the grounds of sexual orientation.
Whilst it granted that same-sex married couples could claim as a “surviving spouse”, it does not extend this recognition to civil unions or registered partnerships, which do not benefit from the inferred rights of intestacy. Regardless, a will remains strongly recommended.
Property and protection
Same-sex couples can live together and start an ordinary family life. However, suppose one of the partners passes away. In that case, the division of property they bought remains unfavourable as the shared common property cannot be mutually inherited.
Instead, each of their respective legal heirs will receive the inheritance of their separate deceased person as per the provisions of the Civil Code instead of naturally transferring it over to the still-alive partner. There is, therefore, insecurity over property that is jointly owned by same-sex couples.
Unmarried opposite-sex couples also have no entitlement over the other’s assets, and the applicant will have to claim for reasonable maintenance but are required to prove that they were being maintained by the deceased immediately before their death.
Parental rights and recognition
Same-sex couples in Hong Kong do not currently enjoy the same parental rights as opposite-sex couples. Hence, they are not attributed equal parental rights. So, in case of the untimely death of the partner who is mentioned as the legal parent, the other might not be recognised as the legal parent of the child.
Similarly, if the non-legal parent passes away, the child will not be entitled to inherit the deceased’s estate. A will sets clear intentions of handover and so, even in the case of same-sex parents.
In the case of unmarried heterogenous couples, if they have biological children, this could be easier, and they could be entitled to a financial dependant’s claim under the Inheritance (Provision for Family and Dependents) Ordinance (IPFDO) in the event of the partner’s death. Still, there are conditions for the same, too.
The case of S v KG  ruled that same-sex partners can enjoy equal parental rights over their children. It was held that a non-biological parent of a child born by a same-sex partner should be granted guardianship rights, joint custody, and shared care over their children.
So, while particular cases show that the court is prepared to consider interpreting relevant legislation in the context, it still needs legal reform.
For unmarried and same-sex couples, this means that there are doors for them to go knock on, but it is not an open door. Getting the law to accept people’s choices and become more inclusive will take time.
In this age of modern love, you can be more aware and well-informed about how you can claim your space and rights. While it’s a long road to complete legal acceptance in the traditional society of Hong Kong, be sure to know what you are rightfully entitled to.
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