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Estate Planning for Same-Sex Couples After the Respect for Marriage Act

By Catherine Hodder, Esq. | Last updated on

Congress recently passed the Respect for Marriage Act in response to concerns that the U.S. Supreme Court may eventually review and reverse the landmark Obergefell v. Hodges case that legalized same-sex marriage nationwide.

This federal law requires the federal government and states to recognize same-sex and interracial marriages performed in a state recognizing same-sex marriage. This means if you married in New York but moved to Texas, where there is no state law allowing same-sex marriage, Texas must recognize your marriage. But the legislation also contains religious liberty protections by allowing Texas to prohibit same-sex couples from marrying in Texas.

A Brief History of Same-Sex Marriage Legislation

The Respect for Marriage Act is the first federal law to recognize same-sex marriages. In fact, under the 1996 Defense of Marriage Act (DOMA):

  • The definition of marriage was a legal union between a man and a woman.
  • States could refuse to recognize same-sex marriages allowed under the laws of another state.
  • The federal government denied benefits to the same-sex partners of government employees, denied Social Security survivor's benefits, and didn't allow same-sex couples to file joint tax returns.

However, in 2003, Massachusetts became the first state to legalize same-sex marriage after its Supreme Judicial Court in Goodridge v. Dept. of Public Health required the state to recognize same-sex marriage under its state constitution. Many states followed suit, legalizing same-sex marriage through constitutional amendments, court decisions, or popular vote.

In 2015, the Supreme Court decision of Obergefell v. Hodges legalized same-sex marriage under the Due Process and Equal Protection clause of the 14th Amendment. However, in Justice Clarence Thomas's concurring opinion in 2022's Dobbs v. Jackson Women's Health Organization (overturning Roe v. Wade), he suggested the court should review the Obergefell ruling.

The proponents of marriage equality worried that if the court struck down Obergefell, same-sex marriages would not be protected under the Constitution.

The bipartisan Respect for Marriage Act passed Congress and is waiting for President Biden's signature. This is the most significant federal legislation since the U.S. military's repeal of the "don't ask, don't tell" policy, which banned service members from discussing their sexual orientation.

Will Estate Planning Change for Same-Sex Couples?

But what does the Respect for Marriage Act have to do with estate planning if you are a same-sex couple? This article will highlight specific issues to consider when making a will, health care directive, or power of attorney.

Last Will and Testament

If you die without a will, you are "intestate," meaning the state has laws for distributing your money and property. Suppose, for example, you have been living with your partner for the past 20 years but are not married and don't have kids. If you die without a will, your estate automatically goes to your closest living relative. If you had a will, your estate goes to your chosen beneficiaries.

Under state intestacy laws, if you are married and don't have a will, your surviving spouse receives a portion of your estate, called an "elective share." Under this system, your spouse and your parents each receive a share of your money and property. Therefore, with proper estate planning, you can give your entire estate to your spouse with a will.

The takeaway: Make a will! Even if married, your spouse will not inherit all your assets unless you make provisions in a will.

Financial Power of Attorney

If you want to name a power of attorney to make financial decisions if you are unable, you must put it in writing. Married couples may sometimes have a say in certain transactions, but often they must be a joint account holder or have prior authorization to act in place of their spouse.

The takeaway: Even if married, your spouse cannot manage all your affairs unless you name them as your power of attorney.

Health Care Directive or Living Will

A health care directive or living will allow you to appoint an agent to make medical decisions for you and carry out your end-of-life wishes. If unmarried, your partner cannot step in and help with your care. You must name them in a health care directive (also called a health care or medical power of attorney).

Married couples can sometimes act as each other's agents. For example, in Florida, without a health care directive in place, your spouse is your default agent. However, that is not a guarantee.

The takeaway: Name someone to handle your health care decisions when you can't. Even if married, a doctor or hospital may only honor their directions with a written health care directive.

And the new federal recognition allows same-sex married couples to receive the same spousal benefits as opposite-sex couples, such as joint-property rights and exemptions on state and federal estate taxes. For example, if you are unmarried and die in Pennsylvania and leave your property to your partner, they pay a 15% estate tax under state law. However, if you are married, there is no estate tax.

Learning about estate planning laws is always worthwhile, especially if you want to understand how this new legislation affects you. There are many DIY resources to make your own will, power of attorney, health care directives, and attorneys specializing in LGBTQ law and estate planning.

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