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Impact of Real Estate Planning on Gay Marriage after Supreme Court’s Ruling

07/29/2015

Following the US Supreme Court’s landmark ruling, literally millions of gays and lesbians have the legal right to get married. This also means that married gay couples will be eligible for rights upon disability or death of a life partner, something that was not available before.

Another aspect of the ruling is that gay married couples have legal right to make decisions pertaining to estate planning. This not only applies to when someone dies but also if a spouse were to become incapacitated. Just as opposite sex married couples, gay and lesbian couples now share the same legal rights.

Tremendous Change

As imagined, legal implications are tremendous and far reaching. Changes are not just symbolic but also monetary. As part of the court ruling, several key examples were provided. One involved plaintiff Obergefell in the case of Obergefell versus Hodges. He and his partner John Arthur were legally married in Maryland but shortly after getting married Arthur passed away from ALS. Obergefell simply wanted his name added as spouse on Arthur’s death certificate but it was prohibited because in the state of Ohio where they lived, the marriage was not recognized.

Another example given by the Supreme Court involved Thomas Kostura who as the spouse of Army Reserve Sergeant First Class Ijpe DeKoe lost his legal recognition under state law when he visited his home state of Tennessee. This meant that if DeKoe were killed in the line of duty, Kostura could not receive government benefits awarded to same sex married couples.

In viewing these two examples, it becomes clear there are some serious things to consider, one being estate planning. Prior to the court’s ruling, couples who lived in states where gay marriage was not recognized were unable to do anything with estate planning. As a result, no spousal support in the event of divorce or death existed. Spousal rights for inheritance did not exist and there was no legal way to serve as a guardian, executor, or conservator in the event of a partner’s death or incompetence.

Other things prohibited included pension, which was not protected and there were no dower rights whereby real estate would be protected, among other things. Simply put, specific to real estate, there was no way to create trust because there were no legal options. Because of the new ruling that makes gay marriage legal in all states, couples have the same opportunities as same sex couples when it comes to preparing trusts, wills, and vital real estate planning documents.

Gay couples can now sit down with a real estate planning attorney and have complete confidence in being treated exactly the same as same sex couples. The fear of losing everything worked together for is now protected. Although no one wants to focus on death, incompetence, or other devastating life events, the good news is that gay married couples can address a wide range of issues knowing that protection is legally in place.

Instead of living in fear of something happening to a partner and then being discriminated against couples have peace of mind. Although the true impact will not be known for a while, experts strongly believe great things are yet to come. Even the number of purchased homes by married gay couples is expected to increase since risk of losing assets has been eliminated.

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