With the Supreme Court’s historic decision today, the right of same-sex couples to legally marry has been finally settled. Same-sex couples now enjoy the same fundamental rights as opposite-sex couples in the creation of a familial and marital status for themselves and their children. But as Justice Kennedy wrote in his opinion, marital status brings with it certain “governmental rights, benefits and responsibilities”.
Of foremost importance for estate planning, the rights affecting inheritance and property rights, intestate succession, hospital access, healthcare decision-making power, and custody should all be addressed for same-sex couples whose existing marriage has been validated by today’s decision, or who wish to marry in the future.
Estate planning is an important part of both same-sex and opposite sex relationships, comprising not only documents evidencing a testamentary intent on what should happen upon our deaths, but also those very significant documents appointing powers of attorney, agents or short-term guardians. The confirmation of marital status for same-sex couples will automatically address many instances of succession as the death of one spouse will necessarily result in a surviving spouse. Spousal survivorship, as opposed to non-spousal survivorship, brings with it certain rights that cannot be abridged by outsiders. No more can disapproving parents preclude a surviving spouse from taking part in the burial of a deceased husband or wife.
That said, the automatic and beneficial rights of the surviving spouse should not be viewed as a means to avoiding the estate planning process altogether. For instance, though intestate succession does have a formula for a surviving spouse, the existence (or non-existence) of children in the marriage could impact the share to which the surviving spouse would be entitled.
Regardless of whether your marriage has been validated by the Court’s decision or if you plan to marry in the near future, I encourage you to discuss the effect the creation of a marital estate will have in your estate plan. As with opposite-sex couples, a validly executed will or trust, coupled with powers of attorney and advance directives gives you the power to decide who will inherit your estate, who will carry-out your plans, and who can advocate on your behalf if the need arises.