Obergefell – My Top Ten Lists of Considerations Under The Law

2DDChildThe Supreme Court has spoken and the rights of same-sex couples have been recognized under the law in Obergefell v Hodges.

What does this mean to you as a practitioner? It means that virtually everything you do that is colored by this opinion must now be revisited and in ways you may not have immagined. Although the opinion addressed trans state recognition of marriages in other states, it also requires the states to issue marriage licenses and give full recognition of the marital status of same sex partners. This decision sets the stage for far broader applications and takes the previously decided case of US v Windsor which already granted rights under Federal Law to the entire population in every setting and in the state courts and legislatures nation wide.

Here is a list of the top ten immediate impacts which, in my opinion, you need to consider in your practice:

1. “Spouse” includes same gender individuals as defined in any statute; substitute the word “husband” or “wife” in your contracts, estate planning documents, court filings, deeds or where ever it appears in  your legal documents with the word “spouse” and eliminate gender references.

2. Family law is now broadened to include same sex partner rights including those previously recognized under ERISA, community property divisions, custody and visitation, adoptions, protective orders, and divorce for those married under the laws of other states.

3. Taxes and the ability to file joint returns for same sex partners and financial planning devices authorized under state law is now coincident with Federal law.

4. Estate planning now requires consideration of a same sex partner’s spousal protections under state law as they are expanded to include a spouse of the same gender. Dower and Curtsey are now dinosaurs as they are gender specific and subject to challenge under yesterday’s ruling.

5. Transfers of property and control over a legally incapacitated individual through protective proceedings such as guardianships or conservatorships gives heightened status to a same sex partner and affords them the same rights under the law which heretofor were not available in the states where same sex marriages were not recognized.

6. Criminal and civil proceedings will change as will the rules of evidence concerning spousal and marital privilege.

7. Contracts which give rights to a spouse are no longer gender specific.

8. Model Codes currently proposed will need to be redrafted to incorporate changes granted to spouses.

9. Trusts and Wills previously drafted will need to be considered where they reference “spouse” as that term is defined to include same-sex partners with consideration of the powers granted to an individual to make investment decisions and the taxable implications of those determinations.

10. Lifetime surrogate medical decision making has changed in light of this decision giving priority and rights to the same sex spouse that were previously limited to traditional partnerships in most states. This means that medical directives need to be changed to reflect those changes.

As an estate planning attorney in Michigan, I see far greater implications that will only become apparent as this decision is adjudicated in the courts. Terms will be redefined, procedures will need to be modified and planning options will be expanded giving attorneys even greater opportunities to enhance their practices and the welfare of their clients as the impact of this decision matures in the courts and is accepted as the societal norm. This post is intended to give you pause and force you to consider your practice and how it will need to change to adapt to comply with this decision. It will also foster a much greater need for QUALITY legal services that are not available on-line with “do-it-yourself” legal forms.



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