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Proper estate planning is especially important for LGBTQ+ individuals and families. If same-sex marriage is challenged through Obergefell v. Hodges, proper estate planning can provide similar rights and privileges. Having things like wills, trusts, powers of attorney, and other advance directives in place ahead of time will protect your rights.
If Obergefell v. Hodges were completely overturned, it would most likely mean that the default marital rights of married couples would no longer be in place for LGBTQ+ folks. This would mean a loss of inheritance rights upon one partner’s death and shared health insurance rights during life, an inability to make decisions for a disabled or sick partner as “next of kin” especially in the healthcare or funeral industries, as well as the loss of social security benefits transferring and joint-filing tax benefits that married American couples enjoy, among others.
Hypothetically, there may be future caveats and protections set in place by the government for same-sex couples who married before Obergefell is ever overturned, but generally in the worst-case scenario, a married couple would expect a loss of all normal default marital and property rights.
Wisconsin has not always been the friendliest marriage state to LGBTQ+ folks. Wisconsin allowed “domestic partnerships” since 2009. This afforded some limited marital rights to same-sex couples, while still maintaining a general ban on same-sex marriages. In 2014, a federal appeals court struck down the state’s previous ban on same-sex marriages as unconstitutional, which was backed up and supported by Obergefell’s ruling by the U.S. Supreme Court in 2015. Wisconsin LGBTQ+ couples now currently enjoy the same marriage rights as all Americans.
Some of the default benefits of marriage in America include:
Spouses are each other’s first heirs to inherit under Wisconsin law and most other states. If a couple is not legally married, there is a risk that if one of them dies, that property will transfer to other, perhaps undesired, family members, rather than their beloved partner.
Unmarried couples can also cause issues for the inheritances to their perceived children. If one partner is not determined to be the legal parent of a child they raised, that child will not automatically inherit the person’s property upon their death. Marriage helps to better merge the legal rights of the entire family together, so both spouses and children are protected and bound together.
Non-married couples do not have the same Next of Kin rights as married couples and therefore have a harder time making emergency medical decisions for their partners. Married couples enjoy the ability to make decisions if one spouse is incapacitated, as well as plan each other’s funerals and burial decisions.
Married couples have easier access and more direct parental rights to children than unmarried couples. Unmarried parents often have to prove parenthood (traditionally “fatherhood”) in court to gain decision-making power and custody rights over their children. If a couple plans to adopt, it is key that they be married so that there is never a loss of rights over their children’s affairs. For LGTBQ+ folks, being married could help secure guardianship rights of step-children after a death, as well as secure normal parental rights over the couple’s own natural or adopted children.
Estate planning documents can grant a couple many of the rights marriage grants. If same-sex marriage rights were overturned, ensuring these rights are maintained one way or another is paramount.
Having a will and/or trust in place can “fix” the lack of inheritance rights issue between unmarried partners. This would be especially important if Obergefell is ever struck down or challenged in court, so that couples do not lose the right to continue residing in their joint home after a death and otherwise inherit each other’s property.
Wills and trusts will stand up and be honored in court, even if the couple’s marital rights have been (unfairly) stripped by the government. Any citizen is free to leave their property to whomever they want in their will and/or trust, regardless of their marital status.
A healthcare power of attorney or advance healthcare directive, will allow couples to make medical and health decisions for each other, even if they do not have marital rights. There are no restrictions on who a person may appoint as their healthcare power of attorney. Therefore, if a couple ever lost their marital rights due to a law change, they could still make emergency decisions for each other in the hospital and function like spouses.
A financial power of attorney allows a person to appoint any other person they choose as their “agent” for taking financial or legal actions on their behalf, especially if the creator was incapacitated and unable to manage his or her affairs. If marital rights were ever lost, a strong power of attorney for finance can help bridge the gap for a couple. It will ensure you don’t lose the ability to manage each other’s financial affairs in those high stress times. With the financial power of attorney, the agent can act on the person’s behalf in things like applying for government benefits, filing taxes, signing contracts, managing property, and more.
To start planning for your family’s future, contact the attorneys at Grieve Civil Law today.
