The legal landscape is always changing, and many same-sex couples worry about what could happen if federal protections for their marriages are weakened or overturned. You’ve worked hard to build a life together, and the last thing you want is uncertainty about whether your marriage, your assets, or your rights will be legally recognized in the future. While no one can predict what will happen next, proper estate planning ensures that your rights and your loved ones are protected – no matter what changes may come.
Understanding Your Legal Protections
Currently, same-sex marriage is recognized nationwide, thanks to the Supreme Court’s Obergefell v. Hodges decision and the Respect for Marriage Act. If you were married in states like Massachusetts or New York – early adopters of marriage equality – your marriage remains valid under those state laws even if federal protections change.
However, not all states offer the same level of protection. Some states have laws that explicitly safeguard same-sex marriage, while others have pre-existing bans that could be reinstated if federal protections are removed. This variation means that where you live can impact your legal rights, especially in areas like inheritance, healthcare decisions, and parental rights.
Additionally, federal benefits tied to marriage – such as Social Security survivor benefits, spousal inheritance tax exemptions, and access to federal retirement accounts – could be affected if legal protections change. If you move to a state that does not recognize same-sex marriage, it could create complications regarding your property, healthcare, and financial rights. That’s why proper estate planning is so important. By putting the right legal documents in place, you can ensure that your wishes are honored and that your loved ones are protected, regardless of what happens at the federal or state level.
Essential Estate Planning Tools for Same-Sex Couples
Before marriage equality became law, many same-sex couples used estate planning tools to create the protections that marriage now provides automatically. These strategies remain powerful today, offering security and peace of mind in uncertain times. Here are the key estate planning tools every same-sex couple should have in place:
1. A Trust for Asset Protection
A trust allows you to control how your assets are managed and distributed without relying on marriage laws. This is especially important if you live in, or move to, a state that may not recognize your marriage. A trust can:
- Ensure your partner inherits your assets without interference from family members or state laws.
- Protect your property from probate, which can be costly and time-consuming.
- Provide instructions for how your assets should be handled if you become incapacitated.
- Allow for long-term financial planning, including setting up protections for children or other beneficiaries.
2. Healthcare Directives and Power of Attorney
In an emergency, your spouse may not automatically have the legal authority to make medical or financial decisions on your behalf – especially if your marriage isn’t recognized where you live. The following documents ensure that your partner can act on your behalf when needed:
- Healthcare Directive (Living Will & Healthcare Power of Attorney): Allows you to name your spouse (or another trusted person) to make medical decisions for you if you are unable to do so.
- Financial Power of Attorney: Grants your spouse or another trusted individual the authority to manage your finances if you become incapacitated.
Without these documents, medical and financial decisions could be left to family members who may not honor your wishes.
3. Beneficiary Designations
Many assets, such as life insurance policies and retirement accounts, pass directly to the named beneficiary, regardless of what your will or trust states. Regularly reviewing and updating your beneficiary designations ensures that your spouse or partner receives these assets without legal complications.
It’s important to note that beneficiary designations often override wills and trusts, so keeping them up to date is crucial. When you create a Life & Legacy Plan with me, I’ll help you review your designations to make sure they align with your overall estate plan.
4. Cohabitation Agreements
If legal protections for same-sex marriage are rolled back, a cohabitation agreement can help protect both you and your spouse. This legal document defines financial responsibilities and property rights, ensuring that both partners are protected if marriage laws change. It’s especially helpful for couples who own property together or where one partner is financially dependent on the other.
5. A Comprehensive Life & Legacy Plan
While individual documents like wills, trusts, and powers of attorney are crucial, the best way to protect your rights is to create a comprehensive estate plan that covers every aspect of your life and legacy. This includes:
- Avoiding probate and unnecessary legal costs.
- Protecting assets from creditors.
- Ensuring privacy regarding your estate.
- Creating a plan for future generations or charitable giving.
With a Life & Legacy Plan, you gain peace of mind knowing that your loved ones are protected, no matter what legal changes may come.
Why You Shouldn’t Wait to Plan
Estate planning isn’t just about preparing for the worst – it’s about ensuring your wishes are honored, your assets are protected, and your loved ones are cared for. Waiting to plan can leave you vulnerable if laws change suddenly.
Even if same-sex marriage protections remain in place, estate planning provides benefits beyond marriage rights, such as tax advantages, asset protection, and the ability to make decisions about your own care and property.
By taking action now, you can:
✅ Ensure your spouse or partner has the legal rights and protections they need.
✅ Avoid legal disputes or financial complications in the future.
✅ Maintain control over your healthcare and financial decisions.
✅ Protect your family’s future, no matter what legal changes occur.
Take Action to Protect Your Family
Instead of waiting to see what happens with marriage laws, take control of your future today.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Life & Legacy Planning Session. This will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a no-obligation 15-minute introductory phone call today.