As gay, lesbian, and other proponents of same-sex marriages celebrate the United States Supreme Court‘s landmark ruling in Obergefell v. Hodges, millions of Americans will now be eligible for dramatically different legal rights upon the death or disability of a life partner than were previously possible.
In fact, in the field of estate planning— including planning for not only what happens when someone dies but also when someone becomes incapacitated — the landscape in the LGBT community has just changed. Gay and lesbian couples now have a level playing field, equal to opposite-sex couples.
The legal implications are far-ranging, from symbolic, to monetary, to life-changing. In fact, the Supreme Court opinion in Obergefell illustrates this by sharing the stories of three sets of plaintiffs involved in that case.
Gay Marriage Ruling Lead Plaintiff, James Obergefell
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 today’s 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.
Now 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.
Gay Marriage Ruling Plaintiffs 2, Thomas Kostura and Jipe DeKoe
Thomas Kostura had 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 means 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 would have received.
That changed in large part in late 2013, when the Supreme Court issued its prior gay marriage decision. The prior ruling mandated 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 United States military required DeKoe to do so.
Now, Kostura and DeKoe are both entitled to all government benefits available to spouses — whether by state or federal law, no matter what state they live in — just like their heterosexual counterparts.
Gay Marriage Ruling Plaintiffs 3, April DeBoer and Jayne Rowse
To Michigan couple April DeBoer and Jayne Rowse, the impact of the ruling may have been even more profound. The lesbian couple chose to adopt four different special needs children, providing a loving home to kids badly in need of one. Under Michigan law, however, no adoption could include two same-sex parents. This meant the couple had to divide up who adopted each child (except the last child, adopted by the both of them after a federal court judge previously ruled in their favor — a ruling that was only temporary until today).
This meant that if DeBoer had passed away, Rowse would have had no legal rights as a parent of DeBoer’s two children. And the children each, legally, had only one parent — not two. Today’s Supreme Court ruling brings cohesiveness, in a legal sense, to their family.
Now both parents will be able to tell schools, hospitals, doctors — or anyone else — that they are the legal parents of all four of their children. They don’t have to worry that if tragedy should befall one of them, some of their children would have been legally parent-less. DeBoer, Rowse, and their children are finally recognized as a single family under the eyes of the law.
The Impact on Estate Planning for LGBT Couples
These three examples are only the tip of the iceberg when it comes to estate planning issues. Before, homosexual couples in states that did not recognize gay marriages (or possibly could refuse to recognize them in the future) would not have been able to do the same estate planning as other married couples. The unequal treatment in the law meant no spousal rights of inheritance, no spousal support in the event of a death or divorce, no intestate inheritance rights, no legal priority to act as a guardian, conservator, or executor if a partner died or became incompetent, no protected pension rights, no dower rights to protect real estate, and much more.
In fact, LGBT couples were unable to create a joint marital trust. They had no guarantee of access to their loved one 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 will, advanced 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.
And what about the last act of love someone could do for a departed loved one — plan a funeral to honor and celebrate a lost life? The next-of-kin has that right. Before today, that would not have included same-sex spouses in many states.
Now married homosexual couples can sleep better at night. They can prepare wills, trusts, end-of-life documents, and other critical estate planning instruments just like any other married couple. Estate planning lawyers no longer have to explain to them, “Sorry, I have to treat you differently than my other clients.” They no longer have to be afraid about what could happen to a spouse or children if one of them were to get 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 the scary possibility of a disability. But now, gay and lesbian couples can face those issues head on, like everyone else, comforted by the knowledge that the laws of the state they live in won’t make a sad situation even worse by discriminating against them during the worst time of their lives.