Same-Sex Marriage and Estate Planning

July 13, 2015

The Supreme Court’s recent decision in the Obergefell v. Hodges case held that under the 14th Amendment, states are required to issue marriage licenses for same-sex couples who desire to marry, and also that states are required to recognize same-sex marriages that were lawfully licensed and performed out of state. Essentially, with the Obergefell decision, same-sex marriage is now legal everywhere in the U.S. This decision widens the scope of how taxes, estate planning, and familial rights will affect same-sex married couples moving forward. The decision does not address every issue relating to the rights of same-sex married couples, but it addresses several important issues nonetheless. The following are only some of the things that same-sex couples and their advisers need to consider in light of the decision:

• Same-sex married couples may now file joint federal and state income tax returns and how that might affect their tax liability
• The inheritance rights same-sex married couples have under state intestacy laws
• The estate and gift tax exemptions and marital deductions afforded to same-sex married couples
• The rights same-sex married couples have in making healthcare decisions
• The rights and responsibilities same-sex married couples have in divorce, including child custody, child support, and alimony
• The relevancy of domestic partnerships now that same-sex marriage is valid in all states
• How newly wed same-sex couples should own assets
• How might the laws in community property and separate property jurisdictions affect same-sex couples looking to marry or newly married same-sex couples

Although many same-sex couples may have already considered these topics and planned accordingly, especially those who were already married prior to the ruling, now that same-sex marriage is valid in every state, it is vital for same-sex couples to seriously consider how these topics might affect their lives moving forward. For those same-sex couples who have already done any estate planning, business planning, retirement planning, tax planning, or financial planning, it may be prudent to revisit those plans. For those same-sex couples who have not done any such planning, it is prudent to consider what planning you may want and need to do.