Landmark Supreme Court Marriage Case May Affect Planning Choices
Published: Tue, 04/28/15
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Landmark Supreme Court Marriage Case May Affect Planning ChoicesIf you cannot view the image below, please read the article on our blog. Image from USNews.com Gay marriage is currently legal in 36 states, mostly because of the decision in the 2013 case of Windsor v. United States, in which the U.S. Supreme Court invalidated the federal Defense of Marriage Act. Two years later, the issue is back in the Supreme Court. And, by the end of this Supreme Court term, either same-sex couples will be able to wed in all 50 states, or gay marriage bans may be reinstituted in many of the states where they've previously been struck down. The current Supreme Court case, Obergefell v. Hodges, deals with two questions: whether all states must issue marriage licenses to same-sex couples and, if they don’t, whether they must recognize those issued by other states. The plaintiff, Jim Obergefell, and his partner of 20 years, John Arthur, were married after Arthur was terminally ill with Amyotrophic Lateral Sclerosis (ALS). To wed, Arthur flew via medical transport plane from Ohio to Maryland, where gay marriage is legal, as part of a “Make-a-Wish” style program for the terminally ill. The couple wanted the Ohio Registrar to identify Obergefell as Arthur's spouse on his death certificate, based on their Maryland marriage. The local Ohio Registrar agreed that discriminating against the same-sex married couple is unconstitutional, but the state Attorney General's office announced plans to defend Ohio's same-sex marriage ban. A federal judge, acting on an expedited basis because of John's health, ordered the state of Ohio to record Jim as the surviving spouse when the time came. Three months and 11 days later, John Arthur died, and Obergefell's name was listed as the surviving spouse on the death certificate. The state appealed, and if it wins in the Supreme Court, it can reissue the death certificate without Obergefell's name. On January 16, 2015, the Supreme Court consolidated Obergefell's case with three others and agreed to review the case. It set a briefing schedule to be completed April 17. The other cases are from Michigan, Kentucky, and Tennessee. The court presented the following questions:
What Benefits Do Same-Sex Married Couples Qualify for Now? At this point in time, with same-sex marriage being legal in 36 states, LGBT married couples qualify for the following benefits:
Regardless of the outcome of the case, planning is of utmost importance If a member of the LGBT community fails to properly plan, the result can be devastating to his or her partner and family. Having no estate plan is tantamount to giving up control of one's estate and management of one's well-being in times of incapacity. The need for an estate plan is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner's care, managing his or her affairs, or even having access to the incapacitated partner. Proper estate planning ensures that correct strategies are used to avoid penalties, extra taxation when possible, and the court and attorney costs of probate. A Revocable Living Trust can establish the client's domestic partner as the trustee if the client becomes incapacitated through illness or accident. The Revocable Living Trust guarantees privacy, through avoidance of probate and its process of opening court records. The Advance Medical Directive can also avoid the potential problems of the client not maintaining control over his or her health care decisions and the domestic partner not having access to his or her partner during a period of incapacitation. While laws are changing to promote greater equality for LGBT seniors, whether you are gay or straight, if you haven’t done so, now is the time to get started with planning for your future and for your loved ones! We here at the Law Firm of Evan H. Farr, P.C. have strategies in place to help LGBT couples, whether married or not. With advance planning, each person, regardless of sexual orientation, can retain the benefit of the money, income and assets it has taken a lifetime to accumulate. If you or your loved ones have not done Long-Term Care Planning, Estate Planning, or Incapacity Planning (or had your Planning documents reviewed in the past several years), please call us as soon as possible to make an appointment for a no-cost consultation: Fairfax Elder Law: 703-691-1888 Fredericksburg Elder Law: 540-479-1435 Rockville Elder Law: 301-519-8041 DC Elder Law: 202-587-2797 |
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