When gay, lesbian, and other proponents of same-sex marriages celebrated the US Supreme Court‘s landmark ruling in Obergefell v. Hodges, millions of Americans became eligible for dramatically different legal rights upon the death or disability of a life partner than were previously possible. These rights extend to estate planning. Gay and lesbian couples now have a level playing field, equal to that of heterosexual couples.
Legal implications of the ruling: symbolic, monetary and life-changing
The Supreme Court opinion in Obergefell illustrates this by sharing the stories of three sets of plaintiffs involved in that case.
1. James Obergefell and John Arthur
The lead plaintiff, James Obergefell, was motivated by nothing more than being legally recognized as the spouse of his partner, John Arthur, whom he married shortly before Arthur died from ALS. Obergefell wanted to be listed on Arthur’s death certificate as his spouse. Before the ruling, that was not possible because the State of Ohio did not recognize same-sex marriages, even though the couple had flown to Maryland to be wed—the tragedy, of course, is that they had to fly to another state to become legally married.
Happily, with the Supreme Court ruling, the “surviving spouse” box on Arthur’s death certificate does not have to be left blank. Obergefell can hold an official State of Ohio death certificate in his hands naming him as the spouse of John Arthur. For a heterosexual married couple, this may seem like a small thing, but this is a major victory for this and every other gay couple in the country.
2. Thomas Kostura and Ijpe DeKoe
Thomas Kostura lost his legal recognition, under state law, as the spouse of Army Reserve Sergeant First Class Ijpe DeKoe every time they traveled across state lines to return home to Tennessee. This meant that if DeKoe had been killed in action on a mission to Afghanistan, Kostura would not have been eligible to receive all governmental benefits that opposite-sex partners of military members are entitled to receive.
In late 2013 that changed when the Supreme Court issued its prior gay marriage decision mandating that all married same-sex federal employees could receive employment benefits to the same extent as other married couples. But what about state employees — or even state-issued benefits, like Medicaid? Kostura and DeKoe could not receive them in Tennessee, even though the only reason they moved to Tennessee was because the US military required DeKoe to do so.
Now, Kostura and DeKoe are both entitled to all government benefits available to spouses, state and federal, regardless of what state they live in--just like their heterosexual counterparts.
3. April DeBoer and Jayne Rowse
For Michigan couple April DeBoer and Jayne Rowse, ruling’s impact may have been even more profound. This lesbian couple adopted four special-needs children and provided a loving home for kids badly in need of one. Michigan law, however, prohibited adoption by two same-sex parents. This meant the couple had to divide up who adopted each child. The exception was the last child, adopted by the both of them after a federal court judge previously ruled in their favor--a temporary ruling until the Supreme Court’s decision.
If DeBoer had passed away, Rowse would have had no legal rights as a parent to DeBoer’s two children. Each child legally would have had one parent, not two. The Supreme Court ruling brings cohesiveness to this and many other families throughout the country.
Now both parents will be able to direct schools, hospitals, doctors, etc. that they are the legal parents of all four of their children. They don’t have to worry that if tragedy strikes one of them, several of their children would be legally without a parent. DeBoer, Rowse and their children are finally recognized as a single family under the eyes of the law.
Further impact Estate Planning for LGBT couples
These three examples are really only the tip of the iceberg when it comes to estate planning issues. Before the Supreme Court ruling, gay couples in states that did not recognize gay marriages (or possibly could refuse to recognize them in the future) estate planning looked significantly different for gay couples than it did for married couples.
The unequal treatment in the law meant no:
- Spousal rights of inheritance
- Spousal support in the event of a death or divorce
- Intestate inheritance rights
- Legal priority to act as a guardian, conservator or executor if a partner died or became incompetent
- Protected pension rights
- Dower rights to protect real estate
LGBT couples were unable to create a joint marital trust
Prior to the ruling, LGBT couples had no guarantee of access to their loved ones in the hospital, especially when traveling out of state. They could never have been certain that, when naming a partner as a future decision-maker under a Living Trust, Advanced Healthcare Directive, or Power of Attorney, that their choice would have been recognized — especially if challenged in court by “actual” family members. Wealthy couples would have potentially faced double inheritance taxes, along with being denied other tax savings that are available for married couples.
The final act of saying good-bye to a loved one—planning a funeral to honor and celebrate a lost life? This was a right that belonged to the next of kin and was often usurped by a so-called family with whom someone really had little relationship. Today, next of kin includes same-sex spouses.
Married gay couples can now prepare Wills, Trusts, end-of-life documents, and other estate-planning instruments in the same was as their married hetero counterparts can. They no longer need to be concerned about what could happen to a spouse or children if one of them were in an accident and a judge refused to recognize the marriage.
No one likes thinking about the inevitability of death, the consequences of aging or becoming incapacitated. But now LGBT couples can face these issues in the same way as everyone else, secure in the knowledge that they’re protected by the laws of the land, that they won’t be discriminated against because of their sexuality.
If one of your New Year’s resolutions was to create or update your Living Trust, call one of our three Bay Area offices today to make an appointment. We help you through every step of the process
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