Simplifying Same-Sex Estate Planning

Simplifying Same-Sex Estate Planning

The Obergefell v. Hodges decision provides a measure of uniformity

Finding that the right to marry is a basic liberty guaranteed by our Constitution’s Equal Protection clause (Amendment 14), the Supreme Court ruled on June 16, 2015, in Obergefell v. Hodges, Docket #14-556 (Oct. Term 2014) that: 1) a state is required to license a marriage between two persons of the same sex; and 2) a state is required to recognize a same sex-marriage licensed and performed in another State. Marriage is found to be a fundamental right.  The relief provided is immediate:  “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Measure of Uniformity

Obergefell’s impact from taxation, through sickness and health and into death, is to provide a measure of uniformity.  Personal planning for same sex couples has been rendered simpler for those desiring to be married. 

Our increasingly ambulatory lifestyles, founded on the long recognized constitutional right to travel, add complexity to estate planning and the administration of burdens and benefits of government.  We move for many reasons, including personal choice, family obligations and the fulfillment of duties undertaken in service of our country. 

Now, persons choosing to join together in matrimony have protection from varying standards applied by state governments on the basis of gender.  Marriage licenses may not be denied to same-sex couples.  And same-sex spouses married in one state may not be treated as unmarried by a different state. Spousal health care, inheritance rights, tax benefits and access to health care information, may no longer be denied on the basis of sex.

Of course, existing benefits and burdens of not being married also continue, so that planning for unmarried couples remains unchanged.  The choice to marry or not remains available.  Many folks may choose not to marry for a wide variety of reasons, including the marriage penalty built into our income tax.

Estate Planning Considerations

Couples who’ve used the statutory structures of states adopting intermediate provisions, such as domestic partnerships or civil unions, may wish to consider whether and how to convert their relationships to marriage.  And, those states providing such intermediate measures may wish to reconsider whether they create distinctions that provide continuing social meaning.

Planning differences will continue to exist from state to state without regard to the same-sex marriage issue.  For instance, only 21 states continue to impose a death tax, which needs to be taken into account for estate planning purposes, regardless of spouses’ sexual configuration. 

And, individuals remain free to structure their estate plans as they desire.  The obligation for provide for one’s own spouse, either through a right of election or community property rights, will apply to same-sex spouses.  Beyond that limitation, the dynastically interested may continue to create trusts for descendants, with limited or no provisions for spouses of their progeny. 

Dissenters Miss the Mark

Within the parameters of uniformity resulting from taking gender bias out of marriage and the broad freedoms of choice otherwise afforded to individuals and to state and local governments, the Supreme Court’s Obergefell dissenters nonetheless find much to be unhappy with.  Their several opinions disregard the lives we live here and now.  The dissenters instead employ false logic that would have allowed slavery to continue 100 years beyond its abolition. 

The dissenters substitute for the majority decision a definition for marriage provided by a single man, the priggish Noah Webster, over 180 years ago.  They would allow religious standards to impose the definition of marriage on all, not just their own congregations.  And, quoting the Federalist papers out of context, the dissenters ignore Madison’s cautionary words of Federalist Paper #51: “If men were angels, no government would be necessary. . . . A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” 

While we were neither the first nor the last to abolish slavery, our country incurred a record social cost, the Civil War, to reach that obvious result.  Similarly, our country isn’t the first, and won’t be the last, to recognize same sex marriage.  Whatever differences may exist, history teaches us to accept one another nonetheless for the social benefit we may provide to one and all in society, while avoiding unconscionable social costs.

Our Supreme Court’s recognition of fundamental rights, including the right to marry regardless of spousal gender, is the “auxiliary precaution” within our constitutional scheme of government.  It provides basic human dignity to each of us as we participate in our unparalleled democracy.

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