Importance of Will Drafts and Trusts for Same-Sex Couples in India

calendar06 Apr, 2023
timeReading Time: 4 Minutes
Will draft and trusts for same-sex couples

The modern world recognises same-sex marriages and treats them equally in terms of legal rights. While the recognition of same-sex marriages may not be officially established in India, there has been a growing need for same-sex couples to protect their rights in terms of inheritance, property, and succession by drafting wills and forming trusts. Legal documentation is essential for same-sex couples in India to ensure their asset distribution according to their wishes and for their partners to avoid any legal tussles or ambiguities. Therefore, this essay seeks to determine the importance of will drafts and trusts for same-sex couples in India.

Wills Drafts and Trusts

Wills and trusts are essential aspects of the law that ensure the proper distribution of an individual’s estate upon his or her death. A will is a legal document outlining the deceased person’s final wishes, including the distribution of property and any other important instructions. A  trust, on the other hand, is an arrangement that allows assets to be transferred to a trustee, who manages the assets on behalf of beneficiaries designated by the grantor.

The importance of drafting wills and trusts lies in their ability to protect one’s assets as well as the interests of the beneficiaries. Not having a draft will can result in the state distributing an individual’s assets, which may not align with the individual’s wishes or even benefit the beneficiaries. This also increases the potential for legal disputes between family members and other potential beneficiaries due to the ambiguity of the individual’s ultimate wishes.

Furthermore, trusts make it possible to avoid probate, which is the costly and time-consuming legal process following a person’s death. This is because the assets placed in a trust become the property of the trust and are no longer the property of the individual. Therefore, trusts can be administered privately without the need for a general probate validation process or court intervention.

Wills and trusts will provide a structure to ensure the proper distribution of assets upon one’s death. Ensures respect for individual wishes and protection of beneficiaries, avoiding disputes and potential legal costs.

Importance of Will Draft for Same-sex Couples

A will is a legal document that specifies the distribution of an individual’s assets after their death. In India, the succession and inheritance issues of same-sex couples are not protected under personal laws, and they do not enjoy the rights provided under the Hindu Succession Act of 1956[1] (Biswas, 2020). This lack of legal protection can lead to disputes, confusion, and exploitation of the surviving partner. Therefore, a will is essential for same-sex couples to ensure that their assets transfer to their desired beneficiary.

Creating a will ensures that the wishes of the deceased partner are realised and that the surviving partner is not left with numerous lawsuits to defend against the parent’s siblings or other legal heirs who may challenge their inheritance. The creation of a will is also important for same-sex couples who live in a joint family, where property disputes are quite common. A will can protect their partners from the family’s interference and avoid the discrimination that generally happens to same-sex partners. Additionally, a will creates legal certainty while ensuring that the surviving partner attains the benefits and rights of the assets.

It is also important to note that a will can be revised as often as the individual wishes, allowing them to change their wishes as their circumstances change and ensuring that their interests are well protected. While the creation of the will may seem like an unpleasant task, it is a crucial tool for safeguarding the interests of same-sex couples.

Importance of Trusts for Same-sex Couples

  • A trust is a legal instrument that can be used to protect the interests of a same-sex couple by ensuring their assets are protected from multiple taxation and other legal complexities. Trusts are established by an individual (the settlor) who entrusts their assets to a trustee for the benefit of a beneficiary (in this case, their same-sex partner). Therefore, the establishment of a trust is important for same-sex couples since it provides a way to ensure their assets are distributed according to their wishes.
  • A trust is an efficient way of avoiding probate proceedings and reducing the complexity of the administration of the estate. This is a significant advantage since the handling of the probate process can be costly and time-consuming, thereby postponing the distribution of assets to the beneficiaries. By establishing a trust, same-sex couples can avoid the time and money-consuming probate process and ensure that their beneficiaries receive the specified assets soon after their demise.
  • Trusts also provide tax benefits and financial security to a same-sex partner. For instance, through a trust, a couple can limit their tax burden by transferring assets from the settlor to the beneficiary without the need to pay excess taxes. With trusts, same-sex partners can ensure that their assets remain within the family, and they remain financially stable. Trusts provide them with a way of retaining control over their assets and ensuring that they are used as per their wishes, avoiding any manipulation or interference from the surviving partner’s legal heirs.

Which is better – Will or Trust?

Will and Trusts are both legally binding and can be used to distribute assets among beneficiaries However, a trust is more private and allows better control over the assets. It is harder to challenge the decision of a Trust than that of a Will.


The legal landscape for same-sex couples has changed significantly in recent years, particularly with the legalization of same-sex marriage. However, a key challenge for same-sex couples remains when it comes to estate planning and protecting their assets. This is where trust can play a critical role. Trusts allow same-sex couples to transfer assets to one another while retaining control and avoiding certain tax liabilities. They also provide a level of privacy and protection against legal challenges to the transfer of assets after one partner passes away. Overall, trusts are a powerful tool for same-sex couples looking to ensure their assets are protected and passed down to their loved ones.

In conclusion, the will drafts trusts, which are essential legal instruments for same-sex couples in India. The establishment of a will ensures that the rights and interests of the surviving partner are safeguarded. It also prevents potential legal tussles with the deceased partner’s legal heirs or family members. The creation of trusts is also vital for same-sex couples, as it protects their assets from legal complexities and multiple taxations. It also ensures that their beneficiaries receive their rightful assets without any delay. Therefore, same-sex couples in India need to invest in legal instruments such as wills and trusts to ensure that their assets are protected and distributed according to their wishes. Finally, the Indian government must recognise and legally protect same-sex couples’ rights and interests to avoid frequent legal disputes and discrimination.

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