A Singapore Context: Estate Planning and the Non-Traditional Family Unit

May 1, 2024

Introduction

In Singapore, the landscape of family structures is slowly evolving, mirroring global trends towards more diverse familial arrangements. While the traditional nuclear family remains prevalent, an increasing number of families are embracing non traditional configurations, including same-sex couples, non-wedded cohabitating couples, and single parent households. However, amidst the celebration of diversity, there lies a complex and often overlooked issue: inheritance planning and the unique challenges faced by children from such non-traditional family units.

Legacy planning, a critical aspect of financial and emotional security, encompasses the management and distribution of assets, properties, and wealth to future generations. Yet, for families outside the conventional mold, navigating this terrain can be fraught with uncertainties and complications. Much of the legal frameworks and societal norms often lag behind the realities of diverse family structures, leaving many vulnerable to unintended consequences and disparities in inheritance, resulting in unnecessary hardships. To this extent, this month’s Family Legacy Planning article shall delve into inheritance laws in Singapore, examining the impact of the current legal frameworks on children in non traditional family units. (For the purposes of this article, ‘non traditional family units’ would refer to family units that do not consist of the typical married couple and children either born in wedlock or legally adopted children, which would include but are not limited to family units such as unmarried, cohabiting couples with their natural children and single parents.)

The Intestate Succession Act 1967 (“ISA”) and the Non-Traditional Family Unit
Section 7 ISA provides a list of rules that determines how the estate is to be distributed between the family when an individual passes on intestate. For easy reference, the following is a reproduction of the 9 rules of Section 7, in a table format:

Rule 1 If an intestate dies leaving a surviving spouse, no issue and no parent, the spouse shall be entitled to the whole of the estate.

 

Rule 2 If an intestate dies leaving a surviving spouse and issue, the spouse shall be entitled to one-half of the estate.

 

Rule 3 Subject to the rights of the surviving spouse, if any, the estate (both as to the undistributed portion and the reversionary interest) of an intestate who leaves issue shall be distributed by equal portion per stripes to and amongst the children of the person dying intestate and such persons as legally represent those children, in case any of those children be then dead.

Proviso No. (1) — The persons who legally represent the children of an intestate are their          descendants and not their next of kin.

Proviso No. (2) — Descendants of the intestate to the remotest degree stand in the place of their parent or other ancestor, and take according to their stocks the share which he or she would have taken.

 

Rule 4 If an intestate dies leaving a surviving spouse and no issue but a parent or parents, the spouse shall be entitled to one-half of the estate and the parent or parents to the other half of the estate.

 

Rule 5 If there are no descendants, the parent or parents of the intestate shall take the estate, in equal portions if there be 2 parents, subject to the rights of the surviving spouse (if any) as provided in rule 4.

 

Rule 6  If there are no surviving spouse, descendants or parents, the brothers and sisters and children of deceased brothers or sisters of the intestate shall share the estate in equal portions between the brothers and sisters and the children of any deceased brother or sister shall take according to their stocks the share which the deceased brother or sister would have taken.

 

Rule 7 If there are no surviving spouse, descendants, parents, brothers and sisters or children of such brothers and sisters but grandparents of the intestate, the grandparents shall take the whole of the estate in equal portions.

 

Rule 8 If there are no surviving spouse, descendants, parents, brothers and sisters or their children or grandparents but uncles and aunts of the intestate, the uncles and aunts shall take the whole of the estate in equal portions.

 

Rule 9 In default of distribution under rules 1 to 8, the Government shall be entitled to the whole of the estate.

 

What Do The Above Rules and Definitions Mean For The Following Non-Traditional Family Units?

Non-Wedded, Cohabitating Partners: It is clear that the Rules provide priority towards the spouse, i.e. a lawfully wedded husband or wife, and speak nothing of any other forms of civil partnership or individuals engaged in any cohabitating arrangements. Effectively, this means a non-wedded, cohabitating partner would stand to inherit nothing from the deceased (via the ISA) even though the surviving partner could have been the biggest caregiver and closest individual to the deceased.

In this aspect, it would be imperative for individuals in such a relationship to create their respective wills if they wish to include their cohabitating partners as beneficiaries of their estate.

Non-Wedded, Cohabitating Partners with Children who have not been adopted by these Partners:

As per the point above, it is clear that if the cohabitating partner is not a spouse nor a family member of the deceased, he/she will stand to inherit nothing from the deceased. In the event the deceased and his/her surviving partner had children out of wedlock, it seems that such children will be deemed to be illegitimate under the laws of Singapore and consequentially, stand to inherit nothing from the deceased’s estate under the ISA.

However, there could be an exception in very particular circumstances where the illegitimate children of a woman who dies intestate, can lay claim to the deceased’s estate. Section 10 of the Legitimacy Act 1934 states that “where… the mother of an illegitimate child, the child not being a legitimated person, dies intestate as respects all or any of her property, and does not leave any legitimate issue her surviving, the illegitimate child, or if he is dead his issue, shall be entitled to take any interest therein to which he or his issue would have been entitled if he had been born legitimate.” Section 10 of the Legitimacy Act thus allows the illegitimate child(ren) to lay claim to his/her/their mother’s estate as though he/she/they was/were her legitimate child(ren) if the mother did not have legitimate children of her own. That being said, it should be noted that if the deceased had legitimate children, such illegitimate children would lose all claim to the estate.

To ensure that such cohabitating partners and their children are beneficiaries to one’s estate, it is important for one to create a will that shall state clearly the beneficiaries to his/her estate. In the event that the individual in such a family arrangement, for any reason, is unable to create a will, the individual could also take steps to legitimize his/her children (as provided in the Legitimacy Act 1934 which includes legally adopting the children, or marrying the other parent of the children(provided such marriage is recognized under the laws of Singapore)) which would then legitimize the children of the individual and thus, giving them a claim under the ISA.

Children Born out of Wedlock in Single-Parent Families:

By the operations of the Legitimacy Act 1934 and the Adoption of Children Act 2022, a child who is born out of wedlock is considered an illegitimate child under Singapore law. This would therefore include children of single-parent families where the child(ren) had been born out of wedlock and the single parent caring for the child(ren) had not taken any further steps to legitimize the child. Accordingly, even though such children from single-parent families may have been cared for no differently had they been legitimate children, they would still be treated as illegitimate children under the law and the same rules under the ISA would apply, leaving them with no share of their biological father’s estate and potentially only a share of their biological mother’s estate where their mother does not have any other legitimate children. This would still apply to such illegitimate children even when their biological parent gets married (to another individual) and such illegitimate children are cared for similarly in the new family, but not legitimised.

Similarly to the previous example, steps like drafting a will, or legitimizing the children could be taken by the individual to ensure such children have a claim to the estate of the individual.

Same-Sex Couples:

The Women’s Charter states that marriages between 2 individuals of the same sex will not be recognized in Singapore. Hence, even though a same-sex couple may have gotten married legally abroad, their marriage will not be recognized in Singapore, resulting in the failure for either of them to obtain the “spouse” status for the application of the ISA. This would ultimately result in the disqualification of either of them to have any priority of claim on each other’s estate under the ISA.

Like the first scenario between cohabitating, non-wedded couples, it will be imperative for such same-sex couples to create their respective wills if they would like to include each other as beneficiaries to their estate.

Conclusion:

As the Intestate Succession Act (ISA) currently stands, it is apparent that the non-traditional family units are left vulnerable and potentially excluded from the inheritance of their loved ones. The rigidity of the current legal definitions fails to reflect the diversity and complexity of modern familial relationships, leading to significant gaps in the protection and security of these families.

Wills become indispensable tools in this context, offering a way for individuals to ensure that their assets are distributed according to their wishes, rather than the default provisions of the ISA. For non-wedded partners, unmarried parents, and same-sex couples, creating a will is a proactive measure to safeguard their loved ones’ financial futures. Additionally, steps such as legal adoption or legitimation of children can provide a more secure inheritance pathway for children born out of wedlock. The importance of wills in these scenarios cannot be overstated.

They provide clarity, reduce potential conflicts, and ensure that the unique dynamics of non-traditional families are respected and acknowledged in the distribution of an estate. As society progresses, there is a parallel need for legal frameworks to evolve, offering comprehensive protection and recognition to all family units. Until such reforms are enacted, individuals in non-traditional families must take personal responsibility for estate planning to protect their loved ones and uphold their legacy. By doing so, they can bridge the gap left by current laws and ensure that their wishes are honored, providing peace of mind and security for future generations.

How Can SMTP Assist you

Having an experienced hand guiding you through the intricacies of the law is always helpful regarding matters of legacy planning. Tapping on our combined decades of experience and very own Wealth Legacy Screening process, our lawyers will be able to assist you in a very systematic and detailed manner on your Family Legacy Planning journey, ensuring certainty and clarity in the management and distribution of your estate.

We also believe in close engagement with our clients, paying close attention to their individual facts and circumstances, and tailoring our advice and courses of action to cater to their specific needs and requirements. SMTP’s core philosophy is to provide bespoke legal advice based on our private clients’ specific needs and requirements, as cases always differ in their fine details. Our team of dedicated staff are ever eager and prepared to assist interested parties. Should you or your clients require any assistance in trust or real estate matters, please feel free to contact our Business Development Team to schedule a consultation. We look forward to working with you.