Marriage is a culturally and often legally recognized union between two (or more) people. Currently, 36 countries legally recognize same-sex marriage, with the United States achieving nationwide recognition in 2015 through the U.S. Supreme Court’s decision in Obergefell v. Hodges. Marriage establishes rights, responsibilities, and legal protections between spouses, and often for children, as well. Put simply: marriage is the right to designate one’s next of kin. When the definition is thought of in this context, same-sex marriage is crucial as it allows us to choose who is prioritized under the worst of circumstances, such as death and disability. Once married, your spouse is immediately instilled with rights to inherit from your estate, social security and other federal benefits, and many other things.
Although LGBTQ+ individuals have achieved marriage equality nationwide, we should always be aware of the evolving legal landscape. We must never assume that any protections available today will be available tomorrow. To this point, in the case of Dobbs v. Planned Parenthood, in which the Supreme Court struck down the right to an abortion in 2022, Justice Clarence Thomas hinted at other decisions the Court should revisit. Thomas stated, “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” Because abortion rights have now been rolled back, other rights are clearly under attack, with Thomas mentioning Obergefell (i.e., same-sex marriage) by name. Thus, the regression of the protections afforded by Obergefell to the queer community is not impossible. It’s important to note that the Obergefell decision was a 5-4 vote, and the four dissenters are still on the U.S. Supreme Court.
Even if you are married, you should still consider and actively pursue your estate planning needs. Utilize all tools available to protect your loved ones, such as:
Wills
Revocable trusts
Health care proxies
Powers of attorney
Appointment of agent to control disposition of remains
Designation of Article 81 guardian
To learn more about the estate planning process and the above mentioned tools, check out our previous post: “Estate Planning 101.”
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