On June 26, 2015 the Supreme Court made history by handing down the landmark same-sex marriage decision, Obergefell v. Hodges. Justice Anthony Kennedy wrote for the majority in the 5-4 decision, finding that States cannot prevent same-sex couples from marrying and must recognize their unions.
The result? Effective nullification of State laws barring gay and lesbian unions. In the decision, Kennedy reasoned, among other things, that the children of gay and lesbian parents “suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.” This determination was just the first step in protecting the LGBT community’s family rights.
In the wake of this ruling one thing is clear, the LGBT community has more power than ever to upend the “uncertain family life” described by Kennedy. The door has been opened for gays and lesbians to be joined in marriage and with it, they must recognize additional estate planning considerations. The decision will impact how married partners’ assets will be treated when they pass by intestacy (without a will) or by a last will and testament. Similarly, automatic disqualifications must be considered if a divorce occurs.
Likewise, more certainty will be introduced in the ownership and passing of real property. Prior to the decision, jointly owned real estate which would automatically pass upon death to the surviving owner would necessitate the deed demonstrating ownership as Joint Tenants with the Right of Survivorship. Now, where partners are married and property is purchased, the property will be presumed to be held as tenants by the entirety. This marital property may then pass automatically upon death to the surviving spouse.
It is important the LGBT community now avail themselves of the family life certainty which comes with careful estate planning so that they do not suffer the injustices described by Justice Kennedy. Meeting with an elder law or estate planning attorney can help a LGBT couple know and understand the implications of their new legal union on the management of their assets. A real estate attorney should also be consulted to understand how particular circumstances will impact property ownership rights. Whether buying or selling property, the relationship status of the owners is an important consideration when preparing a deed. To ensure a certain family life, we hope you reach out to our attorneys at Miller, Mannix, Schachner, and Hafner now to begin planning for your individualized needs.
The full Obergefell v. Hodges decision can be found here: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.