By: Brian G. Winter, Esq.
One of the areas of law impacted by the United States Supreme Court 2015
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.
If you would like to work with one of our experienced Attorneys, please call
OWENS & PERKINS at
schedule your free 30 minute consultation.