The recent decision by the Supreme Court in Dobbs v. Jackson sent shockwaves through the nation as it overturned the landmark Roe v. Wade decision and with it, decades of legal precedent. As a refresher, precedent in the legal context refers to a decision (also sometimes called an opinion) from a court that serves as “authority” for future decisions. Generally speaking, the higher the court, the more authority their decisions have, and the more likely that the decision will become precedent. Although not unheard of, the Supreme Court overturning one of its own precedents is extremely rare.

This decision leaves many thinking “well if Roe can be overturned, can other cases that have established, long-standing precedent be overturned too?” In fact, Supreme Court Justice Clarence Thomas wrote as much in his Dobbs concurring opinion, essentially questioning whether the Court’s previous decisions on contraception, same-sex intimacy, and same-sex marriage should also be revisited.

As an estate planning law firm, we’ve been getting calls from LGBTQ+ clients, concerned that their estate plan may fail if the case memorializing the right to same-sex marriage, Obergefell v. Hodges were to be overturned. They want to know what they can preemptively do, and we want to help. The remainder of this article discusses ways that couples – regardless of gender, sexual orientation, or marital status – can protect themselves and their families.

State Default Estate Plan

If you have been to one of my firm’s estate planning workshops, you have heard me say “everyone has an estate plan; they just might not know about it.” That is because, even if you’ve never drafted any kind of estate planning document, the state you live in provides a set of “default rules” that apply when you have not given any alternative direction. If you are not satisfied with these rules – most people are not – an estate planning attorney can help you craft your own. A Last Will and Testament, Power of Attorney, and a Health Care Proxy are all tools to create your own terms and replace the default government rules.

Some default examples from the Estates, Powers, and Trusts Law of the New York State Statutes include:

• Spouses may be considered first to serve as personal representatives, guardians, or conservators for their spouse if they are unable to make decisions for themselves.
• Spouses can pursue wrongful death actions on behalf of their deceased spouse.
• Spouses can inherit from their deceased spouse.¹
• Spouses can elect for Spousal Refusal.²

Creating A Custom Estate Plan

Any couple married or not should consider creating a custom estate plan. Unfortunately, this is all the more important for same-sex couples whose marriage legitimacy could be threatened should New York or Federal law no longer recognize same-sex marriage. Here are some ways we can work around the default rules:

• Name a specific person in your estate plan
  • For example:
    • Jim Jones is my healthcare proxy vs. my husband is my healthcare proxy
    • I leave all assets to Sue Smith vs. I leave all assets to my wife
• Ensure your specific wishes are in writing
  • Make your wishes concerning Long-Term Care and life-saving measures crystal clear to avoid medical decision delays.
  • Write out your specific end-of-life requests. Do not leave room for someone to question your partner’s decision.
  • Make sure your inheritance plan is broken down with assets going to a named beneficiary as mentioned above.
• Consider further protections by placing your asset in a Trust
  • By placing your assets in a Trust, you appoint who can manage your assets regardless of marital status or regressive regulations.
  • A Trust also allows you to avoid probate and the risk of someone questioning the legitimacy of your partner’s place in your estate.

While we don’t anticipate any changes in the immediate future thanks to the Supreme Court’s summer recess, they will be back in session in the fall. While the majority opinion did not go so far as to call for the revisionist steps that Justice Thomas calls for in his concurring opinion, rest assured that our office and the legal community as a whole will be watching the Supreme Court all the more closely for signs that they may be gearing up to make more significant changes.

If you would like to learn more about creating an estate plan that works for your circumstances, I invite you to attend one of our upcoming workshops. This is a great opportunity to bring individual questions regarding estate planning and the implications of failing to create one. If you would like to schedule a time to review or create your estate plan, please call or email my office today!

¹ The actual amount is dependent on if there are children and their ages at time of death.
² This comes in very handy should one spouse need Long Term Care and want to qualify for Medicaid.