[2024] HKCFA 30, the Court of Final Appeal upheld equal inheritance rights under the Intestates’ Estates Ordinance (Cap. 73) (“

”) and Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (“

”) for surviving spouses of same-sex couples who were validly married overseas.

Under the IEO and IPO, the surviving spouse of a married heterosexual couple would be guaranteed to inherit part of the deceased’s estate on intestacy and may further receive “reasonable financial provision” as his or her “wife” or “husband”, even if the deceased did not make a will to provide for the spouse. In contrast, the surviving spouse of a same-sex couple married overseas did not qualify as a “husband” or “wife” for the purposes of the IEO or IPO. Accordingly, he or she would not be entitled to inherit under the IEO, or make a claim for financial provision under the IPO, as the surviving spouse of the deceased.

In holding that the differential treatment did not pass proportionality review and was therefore discriminatory and unconstitutional, the Court of Final Appeal found that same-sex couples who were married overseas were comparable to married heterosexual couples for the purposes of the IEO and IPO, and that the differential treatment under challenge did not pursue a legitimate aim of having coherent definitions of marriage across legislation which “touch on the subject of marriage”.

Importantly for future equality-based challenges across a range of possible contexts, the CFA also indicated, more broadly, that “coherence across legislative schemes” is unlikely to be a legitimate aim capable of justifying 

, and Denise Souza appeared for the Appellant, the Secretary for Justice.

, and Azan Marwah, instructed by Daly & Associates, appeared for Mr. Li, the Respondent.

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