ADVICE FOR SAME-SEX COUPLES AFTER THE SUPREME COURT’S RULING IN OBERGEFELL V. HODGES RULING

Obergefell v.Hodges, the Supreme Court’s ruling making same-sex marriages legal in all 50 states, has major estate planning implications for same-sex couples. The Court held that same-sex married couples are entitled to equal protection under the laws and that their marriages must be recognized nationwide.  Same-sex couples must continue to be proactive in their estate planning, taking control of their will and trust planning and clearly setting forth their wishes in enforceable legal documents. Specifically, they should:

  • Express their wishes concerning their medical care during periods of incapacity, through durable powers of attorney
  • Structure the distribution of their property — ideally in protective trusts — for the benefit of their surviving spouse and children after death
  • Establish trusts to preserve privacy and to avoid the delay and expense of guardianship or probate proceedings during incapacity and after death
  • Provide legal mechanisms that allow flexibility in administering those trusts to account for changes in the law or in beneficiary circumstances after death
  • Provide clarity and discretion to a trustee to make strategic tax decisions through trust administration after death (through various investment powers, and accounting and tax provisions)
  • Provide for family members other than a spouse or child through their estate plans
  • Make gifts to religious or other charitable organizations through their estates
  • Allow orderly operation and transition of businesses or professional practices through incapacity or death

But even though same-sex married couples are now entitled to equal protection under the laws of every state, the strength of those laws in ensuring dignity in disability and death and orderly and structured distribution of property after death is very limited for all couples.   Families (same-sex and otherwise) should always take control of their planning and leave as little to state law interpretation as possible. That is best done through careful planning with experienced professionals at Thomas Walters who can intelligently guide the family through the process.

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