Obergefell v. Hodges was no doubt one of the U.S.’s most important pieces of legislation if we truly are to be a country where all are created equal. As an attorney who is frequently sifting through the complexities of trusts, wills, and California intestacy laws, I wanted to know how Obergefell v. Hodges would change the estate planning arena of my same sex clients in California, if at all. After all, same sex couples were able to legally marry in California prior to last year’s Supreme Court ruling.
Despite the fact that Obergefell v. Hodges was not a legal game changer for California, I believe the new law will have a significant impact on the Estate Plans, Probate matters, and Trusts of same-sex couples and their families. For same-sex couples in California, the significance of the law lies in its ability to change the national tone, to cry out to the nation the new truth of equality: same-sex married couples are equal in the eyes of the law.
Obergefell sets a National Tone that will:
1. Guaranty Laws of Intestacy are Honored (inheritance when no estate planning exists)
Obergefell simplifies Probate in states where same sex marriage was not previously legal.
First, the law sets a national standard for equality of all married individuals, across all states. Each person in a same-sex marriage will be recognized in every state as the legal spouse of their partner. Thus, if individuals in same sex marriages own properties in states outside California that are not in a trust or will, the spouse will inherit the property without complication. While laws were in place to protect same sex couples’ rights outside of their home state, Obergefell nevertheless makes the world of probate and intestacy more black and white. This is important when it comes to probate law, because gray areas lead to litigation, which leads to stress and high legal costs.
Here’s a hypothetical to illustrate:
Prior to last year’s ruling, Bill Smith and Alex Jones are married in California and Bill passes away. Bill had acquired property during the marriage in another state that does not yet allow same sex marriage. Under California law, Alex is entitled to inherit the out of state property. Federal law requests that state to honor California’s marriage laws. Bill’s property cannot be transferred to a new name without going through the lengthy court probate process. Because gay marriage is not the national standard, Bill’s family decides to bring a lawsuit claiming they are entitled to Bill’s property because Alex and Bill were not legally married in that state. Even if Alex eventually prevails, he has nonetheless been exposed to an out of state legal battle, and potentially lost tens of thousands of dollars in settling the case.
2. Ensure Medical Rights are Honored
Ensures spouse has medical rights when travelling outside CA
The legal spouse has the right to make medical and healthcare decisions should their partner become incapacitated (think Khloe Kardashian and Lamar Odom). They also have hospital visitation rights and other benefits not afforded to “non-family.” While medical centers in states where same sex marriage was not previously legal were supposed to honor same sex marriages, Obergefell eliminates the possibility they may not do so. The new law sets the national tone that same sex marriage in the United States is equal to “traditional” marriage in all ways, in all places.
3. Avoid Potential Trust & Estate litigation
The supreme court definitively affirmed that same sex marriage is the same as opposite sex marriage, period. From a litigator’s prospective, this could prevent future fighting in probate court for same sex couples in California.
Obergefell avoids potential litigation because there is no confusion over whether or not a marriage is legally valid. Much estate and elder law litigation arises due to grey areas, disagreements, confusion, and anger. After Obergefell v. Hodges, no matter which state a couple was married in or what states they own property in, there is no grey area when it comes to the issue of their marriage being legal and valid.
In short, Obergefell v. Hodges sets the tone for social norms: all marriage is created equal under the eyes of the law, everywhere, period.