Why You Need a Will If You Have a Same-Sex Partner

In the Philippines, marriage grants certain rights and obligations between husband and wife, 1 including rules on property relations 2 and inheritance. 3 For one, when a married person dies, whether or not they leave a will, his or her surviving spouse is automatically entitled to inherit some or all of the deceased spouse’s property, depending on the presence of other heirs. 4

However, same-sex partnerships are not recognized under Philippine law. This means that if a person with a same-sex partner dies, their assets do not automatically pass to that partner. Instead, the estate is inherited by the deceased’s compulsory 5 or legal heirs, 6 depending on the existence of a Will.

A common scenario for a person in a same-sex partnership is having no children or surviving ascendants at the time of death. Without a Will, their assets will pass to siblings or other collateral relatives such as uncles, aunts, nephews, or nieces, if any exist. 7 If there are no surviving relatives, the deceased’s property will ultimately pass to the State. 8

Because the deceased’s same-sex partner is legally considered a stranger rather than a relative, they may be left with nothing unless proper estate planning tools, such as a Will, is created. This is essential to ensure that a same-sex partner can inherit from the testator in case of sudden death.

The Free Portion: A Will’s Key Feature

One key feature of a Last Will and Testament is the disposition of the estate’s free portion. This is the part of the testator’s property that the testator can freely give to anyone, whether to other relatives, friends, private corporations, charitable organizations, the poor, or even pets, 9 provided they are not disqualified by law. 10

• 1 Articles 68-73, Family Code of the Philippines
• 2 Articles 74-81, Family Code of the Philippines
• 3 Article 887, Civil Code of the Philippines
• 4 Articles 897-900, 995-1002, Civil Code of the Philippines
• 5 Article 887, Civil Code of the Philippines
• 6 Article 961, Civil Code of the Philippines
• 7 Articles 1003-1010, Civil Code of the Philippines
• 8 Articles 1011-1012, Civil Code of the Philippines
• 9 Article 1026, Civil Code of the Philippines
• 10 Article1027,1032,1035, Civil Code of the Philippines

In contrast, if a person dies intestate (without a Will), the law strictly limits inheritance to blood relatives (descendants, ascendants and collateral relatives), the surviving spouse and ultimately, the State. By leaving a Will, however, the testator, through the free portion, is empowered to distribute a portion of his or her estate as he or she “may deem fit.” 11

The size of the free portion depends on how many compulsory heirs (such as children, ascendants, surviving spouse) 12 are still living at the time of the testator’ death. The portion of the estate that these compulsory heirs are legally entitled to receive is known as the legitime. This portion cannot be disposed of freely by the testator because the law has reserved it for compulsory heirs. 13 Only after setting aside their legitime can the testator distribute the remaining estate, the free portion, to any beneficiaries of their choice. 14

For same-sex couples without compulsory heirs (i.e. no children or living ascendants), a Will allows one partner to bequeath their entire estate to the other. Otherwise, the deceased partner’s entire estate may pass to collateral relatives, if any, or to the State.

Picture this: Amanda and Emily have been in a same-sex partnership for 40 years. Amanda has been estranged from her three siblings for just as long, as they never accepted her relationship with Emily. Their parents, grandparents, and other ascendants have all passed away. Amanda and Emily have no biological or adopted children.

They live in a condominium owned by Amanda. She also owns a car and several shares of stock and cash accounts worth ₱10 million in her name.

One day, Amanda was tragically killed by a drunk driver.

Without a Will, all of Amanda’s properties are legally inherited by her three siblings, while Emily, her partner of four decades, has no claim whatsoever. Under Philippine law, Emily is not recognized as a legal heir and therefore cannot inherit from Amanda.

With a Will, Amanda can name Emily as the sole heir of all her belongings, including the condominium unit, her shares of stock, and her cash, since she has no biological or adopted children and her direct ascendants (parents and grandparents) are no longer alive. This allows Amanda to ensure that everything she worked for goes to the person she chose to share her life with, but is unable to legally marry under Philippine law.

• 11 Article 914, Civil Code of the Philippines
• 12 Article 887, Civil Code of the Philippines
• 13 Article 886, Civil Code of the Philippines
• 14 Article 904, Civil Code of the Philippines

Because same-sex partnerships are not legally recognized in the Philippines, the rights and protections that heterosexual married couples enjoy do not automatically apply. A Will enables a same-sex partner, who is effectively a spouse but not legally recognized as a compulsory heir, to inherit from their partner as a testamentary beneficiary. More than that, it ensures that the person you’ve built your life with is not left out by a legal system that has yet to recognize your partnership. It is not just a legal formality, but also an act of love.

Of course, drafting a will which includes your same-sex partner is nuanced, technical and specific. Thus, it is crucial for this to be facilitated by a lawyer. Ready to ensure that your assets and your partner are protected, even when you’re gone? Plan ahead. Talk to a lawyer today…