In a landmark 5-4 decision, the Supreme Court paved the way on Tuesday for marriage equality by overturning section 3 of the Defense of Marriage Act (DOMA) which defines marriage between a man and a woman on the federal level.
Likewise, the Court “declined” to uphold California’s Proposition 8, which means that Judge Vaughn Walker’s 2010 decision permitting same sex marriage in the state of California will stand. The issuance of marriage licenses in that state is anticipated to resume in as little as 30-60 days.
While these are two huge victories for same-sex couples across the country, full marriage equality in the Untied States has not been achieved by either or these rulings. There are still many legal concerns that face same sex couples in Connecticut, and across the nation.
For starters, despite praises that “DOMA is Dead,” only section 3 of the legislation was declared unconstitutional. Section 2, which declares that states and territories of the United States have the right to deny recognition of same-sex marriages that originate in other states, still stands.
For Connecticut residents, this essentially means that a marriage now recognized in Connecticut does not, and in many cases will not be recognized in other states. Currently 34 states have existing bans on same-sex marriage.
This means for same-sex couples married in Connecticut and move to another state may not be able to qualify for the same benefits available in Connecticut. Social Security survivor benefits are available to spouses based on the state in which they reside at the time of the claim, not the state in which they were married.
Having a plan is so important for a same-sex couple in a medical emergency today. If a gay person is traveling and requires hospitalization in one of these states, your partner may still be legally barred from entering your hospital room or making medical decisions for you. The same is true with children, where only the biological parent has been allowed to remain with the child during medical treatment. Time and time again across the United States, individuals in same-sex relationships are not able to make medical decisions for their partners because of state law or hospital policy.
Or, if you own property in a state that does not recognize same-sex marriages (as many snowbirds and investors do), your assets will be subject to those state’s probate and asset transfer laws if something happens to you. It’s interesting to note that the DOMA ruling was brought about by a widow who had to pay $363,053 more in federal estate taxes following her partner’s death because their marital status was not recognized by the federal government, even though it was recognized by the state they resided in. .That same issue can exist today if you do not properly plan for the future.
Many couples are under the mistaken belief that they do not need an estate plan because succession rules allow for transfers to your spouse. However with so many states not honoring a marriage by same-sex couples, the law may also block your same-sex spouse from inheriting your property in the absence of a solid estate plan.
So while the fight for marriage equality has achieved monumental gains this week, until gay marriage is legalized in all 50 states, gay couples must still take extra legal precautions to protect themselves and their partners if the unthinkable happens.
Having a power of attorney, guardianship over minor children, and health care directive (…and keeping them ‘refreshed’ or updated each year!) is the best way to avoid interference when making medical or financial decisions for a same-sex partner if an unexpected emergency happens while out of state.
Wills and trusts also continue to be the best way to ensure your wishes are honored and your partner inherits what he or she is legally entitled to in the event of your death or incapacity. While this is true for ALL individuals and married couples (regardless of sexual preference), same-sex couples will still need extra protection in this area.
Same-sex estate planning involves a lot of complex and complicated issues. It is important to work with a law firm that has experience and can assist you in coming up with a plan.
So if you are in a same-sex marriage, or civil union recognized by the State of Connecticut (or anticipating entering into one), it’s a good idea to meet with your estate planning lawyer this month to review your plan. Changes on the federal level with DOMA may affect your documents and could easily require an update. Likewise, additional precautions may need to be taken based on the issues mentioned (203) 877-7511 and schedule a complementary planning session with the mention of this article.
