Same-Sex Partners and Wills

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 [2020] 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 [2021] 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.

Secure your futures with wills that are drafted to suit you and your needs with Clickawill.


Understanding the Key Differences: Trusts vs. Wills

Estate planning is a critical process for managing and distributing one’s assets after their passing, and two key components of this process are trusts and wills.

While they may seem similar at first glance, trusts and wills serve distinct purposes and offer unique advantages and limitations.

This blog aims to demystify these two critical legal tools, helping you decide which might be most appropriate for your estate planning needs.

What is a Will?

A will is a legal document specifying how you wish to distribute your assets after death. It is often the first document people consider when planning their estate.

Key Features of a Will

  • Asset Distribution: A will details who inherits your assets, whether it’s family, friends, or charities.
  • Guardianship: If you have minor children, a will is essential for appointing their guardians.
  • Executor Appointment: It allows you to name an executor who will oversee the distribution of your assets according to your wishes.


Wills are straightforward and flexible and have many benefits. They can be easily updated as your circumstances change.

  • Ease of Preparation: Wills are generally straightforward to draft, with or without legal assistance.
  • Flexibility: Easy to update or revise as your life circumstances change.
  • Clarity and Certainty: Clearly outlines your wishes, helping to minimise disputes among beneficiaries.
  • Covers All Assets: This can encompass all assets, ensuring everything is addressed.


A fundamental limitation of poorly drafted wills is their vulnerability to disputes and legal challenges.

When a will is not clearly written or adheres to legal standards, its validity can be questioned, leading to potentially lengthy and contentious legal battles. 

ClickaWill offers an innovative approach to creating wills, ensuring that your estate planning details are not only correct from the outset but also accomplished with ease and efficiency.

What is a Trust?

A trust is a legal arrangement where a trustee holds and manages assets on behalf of your beneficiaries, according to the terms you set.

Key Features of a Trust

  • Control Over Assets: Trusts precisely control how and when your assets are distributed to beneficiaries.
  • Avoiding Probate: Unlike wills, assets in a trust typically bypass the probate process, allowing for quicker and private distribution.
  • Types of Trusts: There are various types of trusts (revocable, irrevocable, living, testamentary), each serving different purposes.


Trusts offer more privacy since they are not public records and can provide tax benefits in certain situations.

  • Probate Avoidance: Assets in a trust bypass the probate process, facilitating a quicker distribution.
  • Privacy Protection: Trusts are not public records, keeping your estate matters confidential.
  • Greater Control Over Asset Distribution: You can set specific terms for how and when beneficiaries receive assets.
  • Potential Tax Advantages: Especially with irrevocable trusts, which can help minimise estate taxes.
  • Protection Against Legal Challenges: Trusts are generally more complicated to contest than wills.
  • Continuity: Trusts can continue to operate and manage assets even if you become incapacitated.


More complex and costly trusts require ongoing management and may not be necessary for simpler estates.

Choosing Between a Trust and a Will

When shaping your estate plan, choosing between a trust and a will is one of the most significant decisions you’ll face.

This choice isn’t just a matter of personal preference; it hinges on various factors influencing how effectively your estate is managed and distributed after your passing.

From the size and complexity of your estate to considerations about privacy, cost, and ongoing maintenance, each aspect plays a pivotal role in determining the most suitable option for your unique situation. 

Furthermore, it’s not always a case of ‘either-or.’ Many find that a combination of trust and a will best suit their needs, offering a balanced approach to estate planning. 

Factors to Consider when Choosing a Will or a Trust

Estate Size and Complexity

A trust can offer more nuanced control over asset distribution if you have a large or complex estate. For instance, using a trust can simplify management and avoid multiple probate proceedings if you own property in various states.

Privacy Concerns

A trust is not a public record that goes through the public probate process, unlike a will. This means a trust can be a better choice if discretion is a priority.

Cost and Maintenance:

Initially, trusts are more expensive to set up and require ongoing management, which might be a consideration for more straightforward estates. However, they can be more cost-effective in the long run by avoiding the costs and delays associated with probate.

Combining Both

Many people use a will and a trust in their estate planning. For example, a will can cover personal items and name guardians for minor children, while a trust manages significant assets like real estate or business interests. This combination ensures all aspects of your estate are addressed according to your wishes.

Legal Considerations

Estate planning is not just about making choices that reflect your wishes; it’s also about ensuring that these choices are legally sound and practical. 

Consulting with an attorney specialising in estate planning can provide the expertise needed to tailor your estate plan to your specific needs, ensuring that your decisions are legally compliant and optimally structured.

Additionally, given that estate planning laws can vary significantly from state to state, ensuring that your will, trust, or any other estate planning tool you employ aligns with your state’s legal requirements is essential. 

Professional Guidance

Estate planning is complex, and professional advice can be invaluable. A professional will writer can help tailor your estate plan to your specific needs.

Compliance with State Laws

Estate planning laws vary by state. Ensure your will and trust align with your state’s legal requirements.


Understanding the differences between trusts and wills is crucial for effective estate planning. Each has its role in ensuring your assets are distributed according to your wishes.

By considering factors like the size and complexity of your estate, your privacy preferences, and your desire for control over asset distribution, you can make informed decisions about which tools to include in your estate plan.

Remember, the goal is to create a plan that offers peace of mind and security for you and your beneficiaries.