Legal AdviceUncategorizedWill

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

Know your rights and the importance of Wills and Trusts as a same-sex couple. Read on to learn how the implementation of a Will or Trust could be in your best interest.

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Will draft and trusts also play a crucial role in same sex couples life. Same-sex marriages have been made legal in India after the decriminalisation of Section 377 of the Indian Penal Code. This ruling came as a breath of fresh air in a country where the LGBTQ+ community has mostly been outcasted and marginalised. Marriage is a basic human right and holds the same meaning for straight and same-sex couples. Yet, this decision from the Hon’ble Supreme Court of India has awarded same-sex couples the right and recognition that was long due. 

The Court ruling has accorded same-sex couples in India the right to lead a dignified, private life. However, to further protect their best interests, same-sex couples, whether married or not, must look into the importance of implementing Wills and/or Trusts. Due to the ever-existing prejudice and taboos in the country, people belonging to the LGBTQ+ community are subject to discrimination and desertion, sometimes from their own families. Will draft and Trusts are legal tools that ensure a fair reimbursement in cases where there might be even the slightest chance of wrongdoing. 

Same-sex couples and people belonging to the LGBTQ+ community are still subject to financial risks that can put their mental and physical well-being at risk. It is all the more crucial to have a good knowledge of the legal tools that can provide security in such instances. 

What is a Will? 

A Will draft is a legal document that guides the allocation of a person’s assets to their designated beneficiaries and heirs after their death. It can include other instructions pertaining to decisions that are to be made after the demise of the person writing the Will. These directions may include the appointment of guardians for minor children (if any), an executor of the Will, distribution of assets, and/or directions for funeral and burial.

 A Will can instruct an executor to form a Trust and appoint a trustee to hold their assets on behalf of particular persons – like a same-sex partner, in this instance. This will safeguard the partner’s future after the death of their spouse. A Will is legally binding, so no amount of pushback from anyone can budge what’s stated on the piece of document. 



Having a complete Will draft ensures the financial security of the deceased’s partner. This kind of security is all the more crucial for same-sex couples to get around any legal issues that might arise. They can be left with property and assets and the responsibility of children upon the death of their partner. 

  What is a Trust?

A Trust is a legal alliance where a trustor gives a trustee the right to hold title to their assets or property. The main intention of a Trust is to move the ownership of these assets from one person to another. Unlike a Will draft, a Trust can transfer ownership even when both parties involved are alive and well. Trusts can possess different types of assets like houses, cars, and investment accounts. 

 One of the main differences between a Will and a Trust is that a Will is required to go through probate, but Trusts don’t. However, to ensure complete protection of the same-sex partner, it is essential to choose both Wills and Trusts. 


A revocable living Trust serves many of the same purposes as that of a Will. However, it provides broader control, protection and privacy. Since a Trust revokes the requirement of probate, the wishes and requests of the trustor are bound to remain private from outside knowledge. Even though same-sex marriage has been legalised, retaining privacy is still a huge requirement for some people belonging to the LGBTQ+ community. Having a Trust ensures that the right to privacy is protected. 

Final Thoughts

To be secure in a relationship even after the demise of a partner, same-sex couples must discuss all probable financial situations and outcomes. No disparity between straight and same-sex couples would be an ideal world scenario, but the same cannot be said for the world we live in. One of the main factors that ensure a dignified life for everyone is financial stability. Same-sex couples usually have it more difficult than others, but with the help of the law and the right knowledge of things, they too can lead the kind of life they want and have the right to. If you have any queries please reach out to Vakilsearch.

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.

What is a Revocable Living Trust?

A revocable living Trust can be put in place and maintained while a same-sex partner is alive. The ownership of their assets can be transferred to the Trust itself, naming the beneficiaries who get control of the same after their death. However, as the name suggests, revocable living Trusts can be modified by the trustor as and when they please.

What is the downside of setting up a Will?

Although a Will could be the best way out for same-sex couples, there are certain factors to consider before drafting one. Wills are subject to probate and, therefore, have less privacy. It is also a public record which can be accessed by anyone. A Will must be written and duly signed in the presence of two witnesses.

Can a Will or Trust be challenged?

Yes. Both Wills and Trusts can be challenged, especially in the case of same-sex couples where there is a higher chance of contest from disagreeing family members and/or relatives. However, it is easier to challenge a Will than a Trust. A Trust is not required to go through probate, which is why it is more difficult to contest in more cases.


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