When preparing Wills, Trusts, and other estate planning documents, care should always be taken to ensure a person’s wishes are carried out. Extra caution, however, is recommended in creating a solid estate plan for same-sex married couples. Why? Aren’t you or your friends safe in light of the ruling in Obergefell?
For the most part, yes. But if marriage equality were ever rolled back, same-sex couples could see familiar estate planning protections weaken or disappear. Thoughtful planning now can sharply reduce that risk.
I recently worked with a lovely same-sex couple who had been together over 30 years and wanted to ensure their wishes would be honored under any circumstances. It is a sensible concern; courts and legislatures are many things, but “predictably sentimental” is rarely one of them. Estate planning works best when it anticipates problems before they become expensive.
The Power of a Word
A great deal of estate law turns on the word “spouse.” This simple term carries priority inheritance if there is no will, the right to serve as personal representative, and community property or homestead protections. If a state stopped recognizing same-sex marriages, a surviving partner could face hostile relatives challenging their legal rights and may be less likely to receive property without solid documents in place.
Real estate is especially temperamental. A home titled in a way that depends on spousal status may not function as intended if the law changes. A surviving partner could find themselves in the awkward position of needing to prove what had already been lived, shared, and built.
Healthcare and End-of-Life Decisions
Medical decisions are also vulnerable. Many statutes rank a “spouse” at the top of the default decision-maker list. If a marriage is not recognized, parents or siblings might outrank a partner for medical choices, guardianship, or funeral arrangements. Clearly worded documents ensure the person who knows you best is the one empowered to act.
Building a Durable Plan
The safest approach is to rely on specific documents, not just marital status. A strong plan should include:
- A Will or Revocable Trust naming the partner directly.
- Updated beneficiary designations for retirement accounts and insurance.
- Powers of Attorney and Healthcare Directives that clearly identify the partner.
- Language stating these documents are intended to apply regardless of future changes in marriage law.
For couples with children, especially where only one partner is a biological parent, adoption or parentage orders can protect inheritance and parental rights.
No one can predict the future, and legislatures rarely send warning letters before changing the rules. However, same-sex couples can take meaningful steps now to build an estate plan that is clear, durable, and far less vulnerable to uncertainty.
