Courts and politicians are in a constant tug of war over the issue of same-sex marriage. Depending on where a same-sex couple resides, the law may impact very important life decisions. Estate planning is the best way to safeguard your wishes and legal rights in certain locales.
The U.S. Supreme Court legalized same-sex marriage in 2015 under Obergefell v. Hodges. In addition, in December 2022, the Respect for Marriage Act (RMFA) codified the definition of marriage to include same-sex couples. It requires states and the federal government to recognize and “give full faith and credit” to same-sex marriages conducted in other states. While 30 states still have same-sex marriage bans, the RFMA does not require those states to perform same-sex marriages; however, it ensures, should Obergefell be overturned in the future, that every state must recognize a same-sex marriage performed in another state.
New Jersey was ahead of the federal government by passing its own law in January 2022 protecting the right to same-sex marriage. Pennsylvania, however, still does not allow same-sex marriages to be performed but, under RFMA, it must now recognize those performed in other states.
Same-Sex Marriage and Estate Planning
In New Jersey, the laws of intestate (dying without a Will) dictate how an estate is distributed when no Will exists. The laws generally look at who the surviving next of kin are to determine who the beneficiaries are. t. However, there are other concerns that estate planning addresses, aside from asset distribution, that all married couples should prepare for. They include:
- Durable Power of Attorney for Financial Affairs: A durable power of attorney allows you (“principal”) to appoint a person (your “attorney-in-fact” or “agent”) to act in your place for financial purposes. Should you or your loved one become incapacitated without executing a power of attorney, a guardian may have to be appointed.
- Advance Health Care Directive: Also known as a Living Will, this document also appoints an agent to make health care decisions should you be unable to communicate for yourself.
- Trust Planning: Should trust planning be appropriate for a particular situation, there are different types of trusts available. Whether it’s asset protection planning, tax planning or special needs planning, experienced estate law attorneys will carefully assess the client’s needs balanced with their financial situation and make recommendations that make sense.
Because it is impossible to predict how lawmakers might change same-sex marriage laws, couples can take control over their own futures through estate planning.