The Supreme Court Might Limit LGBTQ+ Families’ Rights and How Estate Planning Lawyers Can Help
Obergefell v. Hodges, 576 U.S. 644, is a landmark civil rights case in which the United States Supreme Court ruled (5-4) that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court held that state bans on same-sex marriage and on recognizing same-sex marriages duly performed in other jurisdictions are unconstitutional.
For the majority, Justice Anthony Kennedy asserted that the right to marry is a fundamental right “inherent in the liberty of the person” and is therefore protected by the Due Process Clause, which prohibits states from depriving any person of “life, liberty, or property without due process of law.” The marriage right is also guaranteed by the Equal Protection Clause, which forbids states from “deny[ing] to any person…the equal protection of the laws,” by virtue of the close connection between liberty and equality. Justice Kennedy argued that “the reasons marriage is fundamental,” including its connection with individual liberty, “apply with equal force to same-sex couples,” which compelled the Court to hold that “same-sex couples may exercise the fundamental right to marry.” His opinion was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Chief Justice John G. Roberts, Jr. wrote the lead dissenting opinion. Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr. also wrote dissenting opinions.
It is unknown whether a reversal in the Supreme Court on Obergefell v. Hodges would invalidate previously obtained, legal same-sex marriages. With uncertainty surrounding the Supreme Court, clients would be wise to review their estate plan to prepare for a reversal.
You do not want the courts to make decisions for you. A careful review of your estate plan and related documents, including the deed to your home, means reverting to the careful review and preparation that was practiced before the Supreme Court began to equalize legal treatment of couples. There are many presumptions for spouses that do not apply to unmarried partners. A few examples include: it might be beneficial to have your home titled as ‘joint tenants with right of survivorship’ and, couples should strongly consider using revocable living trusts in estate plans, which typically alleviates court involvement.
If this is a concern for you, you are encouraged to meet with one of the estate planning attorneys at Mesch Clark Rothschild to carefully review your estate plan and related documents to ensure you and your loved ones are protected.