Estate Planning for LGBT Couples After Obergefell v. Hodges

A wealth of new opportunities arose when the Supreme Court officially recognized same-sex marriage as a constitutional right in Obergefell v. Hodges, 576 U.S. ___ (2015).

With the right to marry come additional capabilities and tools to help you take care of your well-being and your partner’s, now and in the future. Estate planning is one highly important element of being a married couple; it can be particularly important for same-sex couples since it helps clarify and reinforce the nature of your relationship for family members and others who may not understand or readily accept it.

The U.S. Supreme Court officially recognized that same-sex couples have the Constitutional right to marry as heterosexual couples, and to receive the same rights as heterosexual couples, on June 26. The Obergefell v. Hodges decision requires all U.S. states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other states.

Requiring states to recognize a same-sex marriage from another state (and the accompanying rights) can be important for many reasons, especially if you travel or move to another state. These rights could include your ability to visit your spouse in the hospital or make medical decisions for them if one of you becomes sick or is injured while traveling. Other important state-related rights could include your ability to adopt or establish custody over a child, inherit or distribute property, divorce, and establish spousal or child support.

Other benefits of marriage were previously recognized by the federal government. These benefits include taxation, U.S. citizenship status, certain bankruptcy protections, and the ability to qualify for federal benefits like Social Security, Medicare, and Medicaid. Federal recognition of same-sex marriage rights arose in a series of administrative rulings following court decisions such as United States v. Windsor, 570 U.S. ___ and McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass.).

One important limitation to the Obergefell decision is that it does not force religious organizations to recognize a same-sex marriage. While this limitation does not usually have significant impact on estate planning in Southern California, it is still important to bear in mind when seeking services, assistance, or employment from religious institutions. Other ongoing challenges for the LGBT community, as well as those with “non-traditional” relationships, include federal recognition for domestic partnerships or civil unions, as well as those related to gender identity and expression.

While the Obergefell decision slowly filters through state laws and statutes, it is still critically important for same-sex married couples in Pasadena and the general Southern California area to work with an experienced estate lawyer who has extensive experience representing gay and lesbian clients. Christopher B. Johnson can help you draft key documents, create trusts and other financial shelters, and even provide litigation assistance as needed to best ensure your wishes are carried out properly.