Estate Planning and Same-Sex Marriage

Estate Planning and Same-Sex Marriage

By: Brian G. Winter, Esq.

BWinterOne of the areas of law impacted by the United States Supreme Court 2015 decision in Obergefell v. Hodges, is estate planning. Prior to the legalization of same sex marriage, same sex married couples faced numerous obstacles in passing on their estate when they died. Due to the fact that that same sex marriage was not recognized, same sex married couples did not have the benefits of Arizona’s Trust and Estate Laws.

In Arizona, if a married couple does not have an estate plan in place at the time of death or disability, there are laws in place that protect the spouse and direct how property is to be transferred and who can make health care or financial decisions. Prior to Obergefell, these laws were simply not available for same sex married couples. As a result, if a thoughtful and proper estate plan was not in place for same sex married couples, the consequences often were devastating to the surviving spouse. For example, the same sex spouse could not avail themselves to the State of Arizona intestacy laws which direct how property is to be transferred on death if a valid Last Will and Testament or Trust was not in place. Under the intestacy laws, a same sex married spouse had no legal right to share in their spouse’s estate and inherit under the law for the simple reason that the marriage was not legally recognized.

The same problem arose if a same sex spouse was disabled or incapacitated. If the individual did not have a valid Medical and Mental Health Care Power of Attorney, Living Will or Financial Power of Attorney, the same sex spouse could not legally make medical decisions, end of life decisions or financial decisions for their spouse. In fact, the same sex disabled or incapacitated spouse’s family, could legally exclude the other spouse from having any role or part in the disabled or incapacitated spouse’s affairs.

Fortunately, same sex married couples now enjoy and can avail themselves to the protections and rights under Arizona’s Trust and Estate laws.

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