Defensive Estate Planning for LGBTQ Couples

As a licensed attorney in New York, I have to take a certain number of Continuing Legal Education classes every year as a condition to continue practicing. I sign up for classes that have subject matter relevant to my clients; it keeps my skills sharp and I can keep abreast of major changes in the law. Often, these classes can be a bit monotonous, but the most recent one I attended was fascinating: Defensive Estate Planning for LGBTQ Couples After Dobbs (my thanks to the excellent presenters and the New York State Bar Association). 

You may recall a blog post I wrote last year after the decision in Dobbs v Jackson Women’s Health Organization was published that raised the alarm about Justice Clarence Thomas’ concurring opinion. As a reminder, here is, in part, what Justice Thomas wrote:


“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution’.” 

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Two of the three cases he called out directly impact same-sex couples, and specifically, Obergefell v. Hodges, (providing equal access to marriage for same-sex couples), is most troubling from an estate planning perspective. To be clear, at the time of this writing, same-sex marriage is still legal and the current administrations in Washington and Albany claim that they will fight to preserve that right. And that’s a good thing. But increasing numbers of estate planning attorneys are now advising their clients to go with a “belt and suspenders” approach. I call it “hope for the best but plan for the worst.” 


The Issue

Just off the top of my head, there are about a dozen benefits, rights, and barriers removed, that automatically come with being married (see the full list below). If the right to same-sex marriage is suddenly removed (like with a future Supreme Court decision), we need a backup plan. 

One of the rights that married couples, both the same and opposite sex, enjoy today is the right to make medical decisions for each other if one is incapacitated.  For example, if one spouse is in a terrible accident and alive, but unable to communicate with doctors, the medical facility will, by default, look to the injured person’s spouse to make the medical decisions. However, if same-sex marriage is no longer legally recognized, the medical facility will look to other members of the injured person’s family, just like they did before we had marriage equality. 


Course of Action

When I say “hope for the best and plan for the worst,” I mean I truly hope that marriage equality continues to stand, but if Justice Thomas has his way, then we need to plan for it by executing a healthcare proxy now, naming your spouse as your agent. That way, no matter what the legal status of your marriage, the person you trust most can make decisions for you when you can’t. 


A non-exhaustive list of rights that are available to New Yorkers by virtue of being in a legally-recognized marriage

  • The right to make medical decisions for each other 
  • The right to control the disposition of remains of the deceased spouse
  • An automatic right to family/bereavement leave
  • The right to a distributive share per EPTL § 4-1.1 after the death of a spouse
  • The right of election per EPTL § 5-1.1-A after the death of a spouse
  • Certain family exempt property per EPTL § 5-3.1(a) after the death of a spouse
  • Estate tax marital deduction or presumption of equal contribution in jointly controlled assets
  • Presumption of paternity per EPTL § 4-1.2 
  • The Right to Letters of Administration per SCPA § 1001 (when one spouse dies and there is no will)
  • Protection against blood relatives challenging a Will offered for probate 
  • Standing to object to probate per SCPA § 1410 
  • Right to wrongful death proceeds under EPTL § 5-4.1 


Post Category :

Estate Planning

Alexander S. Keenan, Esq.
Alexander S. Keenan, Esq.
Hi, I'm Alex. I consider myself an approachable attorney. I have called the beautiful Hudson Valley home for most of my life. After focusing on things like international commercial law and litigation, I took a step back and pivoted towards helping my community plan for life's greatest moments. My firm specializes in estate planning, small business law, and real estate law.