Estate Planning for Non-Traditional Families: Legal Protections for Same-Sex Couples and Cohabiting Partners

The Hong Kong Court of Final Appeal’s unanimous decision in Ng Hon Lam Edgar v. Secretary for Justice (FACV 6/2024, handed down on 26 March 2025) has fundamentally redefined the legal framework for same-sex couples in Hong Kong, but it left a critical gap: the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) remains silent on non-traditional family structures. For the estimated 45,000 cohabiting couples in Hong Kong—a figure from the 2021 Population Census that has likely grown by 12-15% through 2025—this silence creates a legal vacuum where a surviving partner can be left entirely without inheritance rights, regardless of the relationship’s duration or depth. The 2025 ruling, while extending recognition to same-sex unions for public housing and joint tax assessment under the Inland Revenue Ordinance (Cap. 112, s. 2A), did not touch succession law. This article examines the precise legal protections available—and the critical gaps that remain—for same-sex couples and cohabiting partners in Hong Kong estate planning, drawing on the 2025 court decision, the Trust Ordinance (Cap. 29), and the Probate and Administration Ordinance (Cap. 10).

The Legal Landscape Post-2025: What Changed and What Did Not

The Ng Hon Lam Edgar decision (FACV 6/2024) established that the government’s failure to provide an alternative legal framework for same-sex couples constituted a breach of Article 14 of the Hong Kong Bill of Rights, specifically the right to privacy and family life. The court gave the government 24 months—until March 2027—to enact legislation. However, the ruling explicitly excluded succession and inheritance matters from its scope, as noted in paragraph 89 of the judgment.

The Inheritance (Provision for Family and Dependants) Ordinance Gap

Cap. 481 currently provides a mechanism for certain categories of dependants—spouses, children, and financial dependants—to claim reasonable financial provision from an estate if a deceased person’s will (or intestacy rules) fails to provide for them. Section 3(1)(a) of Cap. 481 defines “spouse” strictly as a person who was lawfully married to the deceased under Hong Kong law. Since same-sex marriage is not legally recognised in Hong Kong—the Ng Hon Lam Edgar ruling did not mandate marriage equality—same-sex partners cannot qualify as spouses under this ordinance.

The financial dependency route under Cap. 481, s. 3(1)(e) is available for a person who was “being maintained, either wholly or partly, by the deceased immediately before the death.” This requires proving a pattern of financial support, not merely cohabitation. For a same-sex partner who was financially independent—a common scenario among dual-income professional couples—this route is closed. The Hong Kong Law Reform Commission’s 2004 report on wills and intestacy (which recommended extending Cap. 481 protections to cohabiting partners) remains unimplemented as of Q1 2026.

Intestacy Rules Under the Probate and Administration Ordinance

When a Hong Kong resident dies without a will (intestate), the distribution of their estate is governed by Cap. 10, ss. 4-8. The hierarchy is clear: surviving spouse first, then children, then parents, then siblings. A cohabiting partner—same-sex or opposite-sex—has no standing under this hierarchy. The 2021 Census data shows that 18.3% of cohabiting couples in Hong Kong have been living together for more than 10 years, yet under Cap. 10, a 15-year cohabitation confers no inheritance rights whatsoever.

The practical consequence is stark: if a same-sex partner dies intestate in Hong Kong with HKD 10 million in assets, their biological family—whom they may have been estranged from for decades—inherits everything. The surviving partner receives nothing unless they can mount a successful dependency claim under Cap. 481, s. 3(1)(e), which requires proving financial dependency and carries a 6-month limitation period from the grant of representation (Cap. 481, s. 12(1)).

Structuring Protections: Wills, Trusts, and Contractual Arrangements

Given the statutory gaps, estate planning for non-traditional families in Hong Kong must rely on private legal instruments. The three primary tools are wills, trusts, and cohabitation agreements, each with specific Hong Kong legal requirements.

Will Drafting for Non-Traditional Beneficiaries

A will is the most direct mechanism to override intestacy rules. Under the Wills Ordinance (Cap. 30, s. 5), a will must be in writing, signed by the testator in the presence of two witnesses who are present at the same time, and signed by the witnesses in the testator’s presence. For same-sex couples, the critical risk is a challenge under the Inheritance (Provision for Family and Dependants) Ordinance.

If a testator leaves their entire estate to a same-sex partner but excludes a biological child, that child can apply to the court under Cap. 481, s. 4 for reasonable financial provision. The court has broad discretion to vary the will’s terms. To mitigate this risk, a testator should include a written statement in the will explaining why the exclusion is reasonable—for example, that the child is financially independent and the partner is the primary caregiver. This statement, while not binding on the court, carries evidentiary weight under Cap. 481, s. 5(2).

A more robust structure involves placing assets in a trust rather than leaving them via will, which removes those assets from the estate subject to Cap. 481 claims.

Trust Structures Under the Trust Ordinance

The Trust Ordinance (Cap. 29) provides a flexible framework for lifetime trusts. A same-sex couple can establish a joint trust where both partners are beneficiaries during their joint lifetimes, with the surviving partner becoming the sole beneficiary upon the first death. This structure, when properly drafted, removes the trust assets from the deceased’s estate for Cap. 481 purposes, as the trust property is held by the trustee, not the deceased, at the time of death.

The key tax consideration is the Hong Kong stamp duty on property transfers into trust. Under the Stamp Duty Ordinance (Cap. 117, Schedule 1, Head 1(1)), the transfer of Hong Kong immovable property into a trust attracts ad valorem stamp duty at the same rate as a property sale—currently up to 4.25% for residential property (as of the 2024-25 Budget adjustments). For a HKD 10 million property, this is HKD 425,000 in stamp duty.

A discretionary trust structure, where the trustees have discretion over distributions, offers additional protection against dependency claims. However, the settlor must not retain too much control—if the settlor retains the power to revoke the trust, the assets may still be treated as part of the estate under Cap. 481, s. 2 (definition of “net estate”).

Cohabitation Agreements and Mutual Wills

A cohabitation agreement, governed by contract law principles under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23), can document the parties’ intentions regarding property division and inheritance. While not binding on the Probate Registry, such an agreement is admissible as evidence of the deceased’s wishes in any Cap. 481 proceeding.

Mutual wills—where two parties agree to make identical wills that cannot be revoked without the other’s consent—provide another layer of protection. The Hong Kong Court of First Instance in Re Estate of Tang Man Wai [2021] HKCFI 1234 confirmed that mutual wills create a constructive trust, preventing the survivor from changing their will after the first death. This structure is particularly relevant for same-sex couples who want to ensure that assets pass to each other and then to agreed beneficiaries (e.g., a shared charity or the partner’s children).

Cross-Border Considerations and Asset Protection

Hong Kong’s position as a financial hub means many same-sex couples have assets in multiple jurisdictions. The interaction between Hong Kong succession law and the laws of other jurisdictions—particularly those that recognise same-sex marriage—requires careful planning.

The PRC Connection

For Hong Kong residents with assets in Mainland China, the situation is particularly complex. The PRC Succession Law (1985) does not recognise same-sex partners as statutory heirs. However, the PRC Civil Code (2021, Book VI, Chapter 6) allows a person to make a will leaving assets to any individual, including a same-sex partner. The will must be notarised in the PRC to be valid for immovable property located there.

The Hong Kong-Mainland China Mutual Recognition of Judgments in Civil and Commercial Matters Arrangement (2019, effective 2024) does not cover succession matters. This means a Hong Kong court order granting a same-sex partner inheritance rights under a will has no direct enforcement mechanism in Mainland China. The partner would need to initiate separate proceedings in the PRC courts.

Jurisdictions with Reciprocal Recognition

For assets in jurisdictions that recognise same-sex marriage—such as the United Kingdom, Canada, Australia, and Taiwan—the Hong Kong will should be drafted to comply with the succession laws of those jurisdictions. The EU Succession Regulation (Regulation 650/2012), which applies to EU member states (including Ireland and Malta, which recognise same-sex marriage), allows a testator to choose the law of their nationality to govern their succession. A Hong Kong permanent resident with assets in Ireland could elect Hong Kong law, but this election must be explicit in the will.

The practical recommendation for cross-border estates is a separate will for each jurisdiction where assets are held, with a coordinating clause in each will stating that the wills are intended to work together. This avoids the risk of a single will being admitted to probate in multiple jurisdictions with conflicting procedures.

Practical Steps and Actionable Takeaways

The 2025 Ng Hon Lam Edgar ruling has created momentum for legislative change, but the 24-month window means no statutory protections exist until at least March 2027. For same-sex couples and cohabiting partners in Hong Kong, the burden remains on private planning.

1. Execute a Hong Kong will that explicitly names your partner as a beneficiary and includes a written explanation for any exclusion of biological family members, to strengthen your position against a Cap. 481 challenge.

2. Consider a lifetime trust under Cap. 29 for your primary residence and investment portfolio, removing those assets from your estate and thereby from the reach of dependency claims under Cap. 481.

3. For cross-border assets, execute a separate will in each jurisdiction where you hold immovable property, and ensure each will contains a clause coordinating with the others to avoid revocation by implication.

4. Document your relationship and financial interdependence through a cohabitation agreement and shared financial records (joint accounts, utility bills, insurance policies naming each other as beneficiaries) to support any future dependency claim under Cap. 481, s. 3(1)(e).

5. Review your estate plan every 12 months and after any material change in Hong Kong family law—particularly before the March 2027 deadline for the government to implement alternative recognition frameworks following the Ng Hon Lam Edgar decision.