The beginning of this article is an excerpt from a post written by Attorney Wilson in June 2022 when the Supreme Court decision overturning Roe v. Wade was leaked.

In the Dobbs v. Jackson Women’s Health Organization case, which overturned Roe v. Wade, the 1973 U.S. Supreme Court case that legalized abortion, Justice Alito mentioned the June 2015 U.S. Supreme Court case of Obergefell v. Hodges, which held that the fundamental right to marry extends to same-sex couples.

This mention was made, along with Loving v. Virginia (the 1967 case legalizing the right to marry a person of a different color), Griswold v. Connecticut (1965 case legalizing the right to use contraception), among several other cases that have expanded the Constitutional rights for changing social times, to compare why Roe and Dobbs are different.

However, the legal analysis of the case puts all of these cases in question because he reviews whether Roe should be upheld based on the laws at the time the 14^th Amendment was ratified….in 1868. In 1868, all of the above “rights” were illegal as well.

Members and allies of the LGBTQ+ community are rightly concerned, especially since the case that provided everyone in the nation the right to marry the person of his, her or their choosing, regardless of gender, was decided less than seven years ago.

So How Does This Relate to Estate Planning?

Besides the obvious and overarching concerns of being able to choose who to marry, the institution of marriage affords the spouses certain benefits.

Marriage provides the spouse with the status of an heir when the first of the couple dies. Each state has its own laws of intestacy. These laws provide a hierarchy of who will inherit the deceased person’s estate if there is no Will to provide otherwise.

 

Related Post: Beneficiary Vs Heir – What Is The Difference?

 

In most states, including Connecticut, the spouse receives either 100% of the deceased person’s estate or a majority portion of it. Most states, including Connecticut, also allow spouses who have been completely written out of their spouse’s Will to elect a “spousal share” to ensure that the spouse receives something.

There are also employee-sponsored benefits programs that provide benefits to spouses. Some employers offer group health insurance plans that can extend to the spouses of their employees.

Additionally, companies that provide monthly pensions as part of a retirement plan allow the employee to choose survivor benefits for a spouse. And social security benefits are provided to spouses but not to partners.

Finally, the decision-making authority regarding the final funeral and burial of a deceased person is given to the spouse, if there is one.

Will Overturning Marriage Equality Invalidated Estate Planning Documents?

Many readers may already know the story of how I got started in estate planning—volunteering for the AIDS Legal Referral Service in San Francisco by preparing Wills for hospitalized people who were dying so that their partners, who they were not legally able to marry in the late ’90s, would be able to inherit their estate rather than the families who had often disowned them.

Just as I did in the late 1990s, we are once again assisting clients who worry they may lose the estate planning rights granted to spouses if marriage equality is overturned. In response, we are carefully drafting estate planning documents with this possibility in mind—explicitly naming spouses rather than relying solely on the term “spouse.” These distinctions will be crucial if marriage equality is ever deemed unconstitutional and invalidated.

While I do not support the invalidation of marriage equality, it’s important to remember that you can still designate your spouse as your agent and beneficiary. Every adult has the legal right to appoint someone—regardless of marital status—to make medical, financial, and end-of-life decisions on their behalf. If certain marriages are legally invalidated and spousal rights are removed, the only way to ensure your partner retains authority over these matters is through proper estate planning. Additionally, all adults have the right to name beneficiaries for their estate, ensuring their assets go to their chosen loved ones, whether that person is legally considered your spouse or not.

We are here to provide guidance and reassurance, helping those concerned navigate their estate planning options with confidence.

Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice and is for general informational purposes only.

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