LGBTQ+ Inheritance in India: Planning When the Law Doesn’t Protect You

Here is the reality: if your same-sex partner dies tomorrow without a will, you inherit nothing.

Not the flat you both paid for. Not the savings account you both contributed to. Not the insurance policy where you’re named as nominee. By operation of law, everything goes to their parents, siblings, or other blood relatives. You have no legal standing as an heir.

This isn’t a gap in the law. It’s the law working exactly as written. Indian succession statutes, the Hindu Succession Act, the Indian Succession Act, Muslim personal law, were all built around legally recognized marriages. And same-sex marriage isn’t recognized in India.

The Navtej Singh Johar ruling (2018) decriminalized homosexuality. It didn’t change a single line of succession law. The Supriyo ruling (2023) acknowledged the dignity of queer relationships. It still refused to recognize same-sex marriage or grant inheritance rights.

So where does that leave you? With the same tools every other Indian has: a will, a trust, and careful planning. The difference is that for you, these aren’t optional. They’re the only thing standing between your partner and losing everything.

What the Courts Have Actually Said

Let’s be precise about the legal landscape, because overstatement helps nobody.

Navtej Singh Johar v. Union of India (2018): A five-judge bench unanimously struck down Section 377 of the IPC, decriminalizing consensual sexual conduct between adults. The Court recognized LGBTQ+ persons’ rights under Articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression), and 21 (right to life and dignity). But it changed nothing about marriage, inheritance, adoption, or succession law.

Supriyo v. Union of India (2023): A five-judge Constitution Bench delivered a 3:2 split verdict, with the majority declining to legally recognize same-sex marriages under the Special Marriage Act or any other legislation. The Bench unanimously held there is no fundamental right to marry. CJI Chandrachud’s dissent argued that queer unions deserve legal recognition and the state shouldn’t discriminate in benefits, insurance, and inheritance. The dissent isn’t law.

What came after Supriyo: The Court directed the government to form a committee to examine rights for queer couples. A six-member committee was constituted in April 2024. By August 2024, it had produced two concrete advisories: (1) partners in a queer relationship can be treated as part of the same household for ration cards, and (2) no restrictions for queer persons opening joint bank accounts or nominating partners. Useful, but far from inheritance rights.

The Will: Your Most Important Document

Under the Indian Succession Act (Sections 59 and 63), any person of sound mind who is not a minor can make a will. There is no restriction based on sexual orientation. And here’s the critical part: there is no restriction on who you name as beneficiary. You can leave everything to your partner, to a friend, to anyone.

Requirements for a valid will:

• The testator signs or affixes a mark
• Two witnesses attest the will (each sees the testator sign and each signs in the testator’s presence)
• Registration is optional but recommended

That’s it. No lawyer needed. No stamp paper. No government approval.

But here’s what makes LGBTQ+ estate planning different: the risk of a family challenge is real. Your biological family members, the ones who would inherit if you died without a will, have a financial incentive to contest it. They can challenge on grounds of unsound mind, undue influence, coercion, or improper execution.

How to make your will as challenge-proof as possible:

1. Register the will at the Sub-Registrar’s office. Registration doesn’t make a will more legally valid, but it makes it much harder to dispute because the sub-registrar verifies your identity at the time.
2. Get a medical certificate of sound mind from your doctor on the day you sign the will. This directly counters the most common challenge ground.
3. Video-record the signing. Not legally required, but powerful evidence of voluntary intent.
4. Use independent witnesses who are not beneficiaries under the will.
5. Update the will every few years or after any major life change.

A will costs almost nothing to create and is the single most important document protecting your partner.

Why a Trust Might Be Better

A private trust under the Indian Trusts Act, 1882 has advantages that a will doesn’t, and these advantages matter more for LGBTQ+ couples than for most people.

Advantage 1: It takes effect while you’re alive. A will only activates after death. A trust transfers assets during your lifetime. Once assets are irrevocably placed in a trust, they are no longer part of your personal estate. Your family can’t claim what’s not yours anymore.

Advantage 2: It’s harder to challenge. Contesting a will is relatively straightforward. Contesting an irrevocable trust where assets have already been transferred is far more difficult.

Advantage 3: Privacy. A probated will becomes a somewhat public document. Trust deeds are generally private.

Advantage 4: It covers incapacity. If you have a stroke or accident, a trust ensures your partner has access to the assets. A will does nothing until you die.

What you need:

• A settlor (you)
• At least one trustee (can be your partner, a trusted friend, or a professional)
• A clearly named beneficiary (your partner)
• Assets transferred to the trust (money, property, investments)
• A lawful purpose (providing for your partner’s welfare)

The trust deed should specify exactly how assets should be managed, how income should be distributed, and what happens if both you and your partner pass away.

One trade-off: Trust income is taxed at maximum marginal rates unless distributed to beneficiaries. Have a CA run the numbers before you set one up.

Nominations: Necessary but Not Sufficient

Can you name your same-sex partner as nominee? Yes. There is no legal bar.

• Bank accounts: The RBI has confirmed there are no conditions or restrictions on who can be a nominee. The Department of Financial Services issued an August 2024 advisory explicitly stating no restrictions for queer persons on joint accounts or nominations.
• Insurance: LIC confirmed via an RTI response that any person, including a stranger or legal entity, can be nominated. There is no bar on same-sex partner nominations.
• Demat and mutual funds: SEBI’s 2025 rules allow up to 10 nominees per folio. The rules don’t restrict who can be nominated.

Here’s the trap: A nominee is not a legal heir. The Supreme Court confirmed in Shakti Yezdani v. Salgaonkar (2023) that nominees hold assets as trustees, not owners. Your nominee receives the money, but is legally bound to hand it over to legal heirs as determined by succession law.

For a married person, nominee and legal heir are often the same (the spouse). For you, they’re not. Your partner as nominee will receive the insurance payout or bank balance. But your parents or siblings can legally demand it back.

The fix: Nomination + will. Name your partner as nominee for smooth, fast access. Then execute a will bequeathing those same assets to your partner, so they’re also the legal owner. Without the will, the nomination is a temporary placeholder that your family can override.

Joint Property: What’s Possible and What’s Not

What works: Any two individuals, regardless of relationship, can buy property together as co-owners. No marriage requirement exists for property co-ownership in India. You and your partner can jointly purchase a flat, a plot, or any property.

The standard approach is tenancy in common, where each co-owner holds a defined share (50-50, 60-40, whatever you agree). Write a co-ownership agreement covering shares, usage, expenses, what happens if one wants to sell, and dispute resolution.

What doesn’t work:

• Joint home loans are generally unavailable to same-sex couples. Most lenders require co-borrowers to be blood relatives or legally married spouses.
• Right of survivorship is not automatic. If your partner dies, their share doesn’t automatically pass to you. It passes to their legal heirs (biological family) unless a will directs otherwise.

The planning: Each partner must execute a will bequeathing their share of the property to the other. Without this, a co-owned flat can end up partly owned by your partner’s estranged family.

The Tax Trap You Need to Know

Under Section 56(2)(x) of the Income Tax Act, gifts received from “relatives” (as defined in the Act) are exempt from tax. The definition of “relative” includes spouse, lineal ascendants, descendants, siblings, and their spouses.

A same-sex partner is not a “spouse” or “relative” under this definition.

What this means practically: If you gift your partner money or property exceeding Rs 50,000, it’s taxable as income in their hands. A married heterosexual couple pays zero tax on the same transfer. This isn’t a hypothetical problem. It affects property co-purchases, joint investments, and even informal financial support.

A same-sex couple challenged this in 2024. Payio Ashiho and Vivek Divan filed a petition before the Bombay High Court seeking inclusion of same-sex partners under the “spouse” definition for Section 56(2)(x) exemptions. The Court issued notice but refused interim relief. The government argued that since the Supreme Court in Supriyo held that same-sex marriage recognition must come through legislation, the tax exemption can’t be judicially extended. The case remains pending as of early 2026.

Other tax disadvantages:

• No HUF (Hindu Undivided Family) tax benefits
• Can’t claim health insurance premium deduction under Section 80D for your partner (only for “spouse” and dependent family members as defined)
• No dependent deduction available

Until the law changes, plan around it. Structure transfers carefully with your CA’s help.

Transgender Persons: A Different Set of Gaps

The Transgender Persons (Protection of Rights) Act, 2019 prohibits discrimination in healthcare, education, employment, and the right to reside, purchase, rent, or occupy property (Section 3). But it has a notable omission: the word “inherit” doesn’t appear in the property protection provisions.

The structural problem: The Hindu Succession Act uses binary gendered terms (“son,” “daughter,” “widow,” “husband”) to define heirs and order of succession. There is no provision for transgender persons who may not fit into these categories. A transgender person who has changed their gender identity may face challenges claiming inheritance under their new identity, particularly if documents don’t match family records.

The NALSA judgment (2014), which recognized third gender as a legal identity, didn’t address inheritance rights under personal law statutes. Neither does the 2019 Act.

Uttar Pradesh is a rare exception: in 2020, it granted inheritance rights to transgender persons for agricultural property by amending the UP Revenue Code, 2006. No other state has followed.

Practical advice for transgender individuals:

• Get all identity documents (Aadhaar, PAN, bank accounts, property records) updated to reflect your current legal identity
• Execute a detailed will. Don’t leave your inheritance to the default rules of a succession law that wasn’t written with you in mind
• A trust offers additional protection if family relations are strained

Adoption: Know the Limits

A single LGBTQ+ individual can adopt under the Juvenile Justice Act, 2015. Sexual orientation is not a listed disqualification. However, a single male cannot adopt a girl child.

Same-sex couples cannot adopt jointly. The JJ Act defines “couple” as a “married man and woman” living together for at least two years. The Supreme Court in Supriyo explicitly declined to extend adoption rights to same-sex couples.

The consequence for estate planning: Only one partner can be the legal parent. The other has no legal parental rights, which affects custody, guardianship, and inheritance planning for the child. If the legal parent dies, the other partner has no automatic standing. Plan for this with a will that provides for the child and, if possible, a guardian appointment.

The Checklist

Here’s what you should do, in order of priority:

1. Write a will. Name your partner as the primary beneficiary. Get a medical fitness certificate. Register it. Video-record the signing.

2. Update all nominations. Name your partner as nominee on every bank account, FD, mutual fund, demat account, and insurance policy. Remember: nomination without a will is incomplete protection.

3. Consider a trust. If your assets are significant or your family situation is difficult, an irrevocable private trust offers stronger protection than a will alone.

4. Co-ownership agreements. If you own property together, have a written agreement. Each partner should will their share to the other.

5. Document everything. Where your accounts are, policy numbers, login credentials, the name of your lawyer, your CA. If something happens, your partner shouldn’t need to search through drawers or guess passwords.

6. Talk to a lawyer. LGBTQ+ estate planning in India is still an evolving area. A lawyer familiar with this space can help you structure things to minimize vulnerability.

Frequently Asked Questions

If I name my partner as nominee, don’t they automatically get everything?

No. A nominee is a custodian, not an heir. They receive the money or asset for safekeeping, but legal heirs can claim it. You need a will to make your partner the legal owner of what they receive as nominee.

Can my family challenge my will because I left everything to my same-sex partner?

They can challenge it, but not on the grounds that your partner is same-sex. Challenges require evidence of unsound mind, undue influence, fraud, or improper execution. A registered will with a medical fitness certificate and video evidence is very difficult to overturn.

Is a registered will more secure than an unregistered one?

Both are legally valid. But a registered will is much harder to dispute because the Sub-Registrar verifies your identity and the witnesses at the time of registration. For LGBTQ+ individuals facing a higher risk of family challenges, registration is worth the small fee and effort.

Do I need a lawyer to create a will?

No. A will on plain paper with two witnesses and your signature is legally valid. But given the complexity of LGBTQ+ estate situations, a lawyer can help structure things better, especially if you have property, business interests, or a complicated family situation.

What happens if both partners die without a will?

Everything passes to each person’s biological family under their applicable personal law. Your partner’s family gets their assets. Your family gets yours. Whatever you built together gets divided between families who may have had no part in building it.

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Disclaimer: This article is for informational and educational purposes only. It does not constitute legal, financial, or tax advice. Laws referenced (Indian Succession Act 1925, Hindu Succession Act 1956, Transgender Persons Act 2019, Income Tax Act Section 56(2)(x)) are subject to change. The legal framework for LGBTQ+ inheritance in India is evolving. Court rulings and government advisories mentioned are current as of early 2026. Consult a qualified lawyer for advice specific to your situation. Anshin is not a financial advisory service.