Supreme Court Rules in Favor of Same-Sex Marriage

06/26/2015

On June 26, 2015, the Supreme Court of the United States, in Obergefell et. al. v. Hodges, Director of Ohio Department of Health, et. al., ruled and held by a 5-4 decision that same sex marriages must be recognized in every state and same-sex couples are entitled to equal protection under the laws.  This landmark decision will impact many Americans.

 The facts of the case were relatively straightforward.  Jim Obergefell and his partner, John Arthur, sought to enter into a legal marriage in Ohio. Mr. Arthur was terminally ill at the time and they wanted to solemnize their relationship before Mr. Arthur’s death. They flew to Maryland, where same-sex marriage is legal, and they got married returning to Ohio as a married couple. 

Soon after the marriage, Mr. Arthur died. The State of Ohio issued a death certificate that did not identify Obergefell as surviving spouse. Mr. Obergefell sued the state so that he could be named as the surviving spouse.  He argued that Ohio’s constitutional ban on same-sex marriage – including nonrecognition of marriages solemnized in other states – violates the equal protection clause of the 14th Amendment. This case was consolidated with a series of other same-sex marriage cases for resolution by the Supreme Court of the United States.

The Supreme Court ruled that (i) the 14th Amendment requires states to issue marriage licenses to individuals of the same gender; and (ii) the 14th Amendment requires states to formally recognize same-sex marriages of that state’s residents, when those residents entered into a same-sex marriage in another state where the marriage was legally valid.

So what is the impact of this decision?  State laws and/or state constitutions banning same-sex marriage (like in Missouri) are effectively invalidated. Same-sex couples can now get married and enjoy all state spousal benefits that opposite sex married couples enjoy. This would include, marriage, divorce, adoption and child custody, separation agreements & QDROs, marital property, survivorship spousal death benefits, inheritance through intestacy, priority rights in guardianship proceedings, contract rights and tax benefits to name a few.

After Obergefell, same-sex couples are afforded the same spousal rights that other couples enjoy. Some of these occur independent of proactive planning, like:

Planning for same-sex married couples (and same-sex couples in general) is important and same sex couples should consider:  (i)  proactively expressing their wishes concerning their medical care during periods of incapacity (through durable powers of attorney); (ii)  structuring the distribution of their property – ideally with a trust or trusts – for the benefit of their surviving spouse/partner, children and/or others;  (iii) establishing a trust or trusts to preserve privacy, and to avoid the delay and expense of guardianship or probate proceedings during incapacity and after death; (iv)  providing mechanisms that allow flexibility in administering those trusts to account for changes in the law, or changes in beneficiary circumstances after death;  (v)  providing clarity and discretion to a trustee to make strategic tax decisions through trust administration after death;  providing for family members other than a spouse or child through their estate plans;  (vi)  making gifts to religious or other charitable organizations through their estates;  (vii)  allowing orderly operation and transition of businesses or professional practices through incapacity or death

While same-sex married couples are now entitled to equal protection under the laws, the efficacy of those laws in ensuring dignity in disability and death, and orderly and structured distribution of property after death is somewhat limited to those who plan ahead.