Legalization of Same-Sex Marriage Affects Estate Planning

On June 26, 2015, in a landmark decision in the Obergefell v. Hodges case, the Court ruled 5-to-4 that same-sex couples have a constitutional right to marry under the 14th Amendment and that states cannot ban same-sex marriage. In addition to the fact that same-sex couples can now get married in every state in the United States, this decision also means that every state will recognize those marriages AND that married same-sex spouses have all of the rights, benefits, and obligations that all married couples have.

With this legal change, married same-sex couples can plan their estates counting on laws that protect spouses in a variety of situations. For example, same-sex couples can now rely on:

  • inheritance rights for spouses
  • property rights under intestate succession
  • visitation rights in the hospital
  • rights to make decisions about a spouse’s medical care
  • rights to make decisions about a spouse’s body disposition after death
  • parental rights to children born during the marriage
  • the right to port the gift and estate tax exemption

Each of these spousal issues – and many others -- can affect a couple’s estate plan.

Over the next year or two, we will revise each of our estate planning books to reflect the legality of same-sex marriage. In the meantime, as you read our books, read them with the understanding that all discussions involving marriage equally apply to same sex spouses.

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