In 2015, the United States Supreme Court issued a landmark ruling in the case of Obergefell v. Hodges, legalizing same-sex marriage throughout the country. Prior to the Supreme Court’s ruling in Obergefell, many states, including Michigan, had laws that made same-sex marriages illegal. In the current political climate, the idea of the Supreme Court overturning their prior ruling in Obergefell has become an unfortunate possibility. If you are concerned about protecting your estate amidst potential law changes, regardless of whether or not you are part of a couple or are single, our Troy, MI estate planning lawyer is here to help.
Potential Impact On Michigan Same-Sex Couples
Currently, Michigan’s government has not taken any definitive actions to solidify the marital rights of same-sex couples if the Supreme Court’s ruling in Obergefell were to be overturned. Thus, if Obergefell were to be overturned, Michigan’s prior ban on same-sex marriages would again become law in the State of Michigan.
You may be asking, if same-sex marriage is overturned, how would this impact same-sex couples in Michigan? It is unfortunately also unclear as to whether same-sex marriages that have already been performed and recognized would continue to be recognized, or even worse, retroactively made invalid as if they never occurred. However, there are steps that same-sex couples can take to preserve certain rights for their spouses.
Establishing Powers Of Attorney
First, same-sex couples should have Healthcare and Financial Powers of Attorney executed that name their spouse as their Attorney in Fact and Patient Advocate. These Powers of Attorney should contain language stating that these documents are still effective even if their marriage is dissolved as a matter of law and not because of a divorce or other legal proceeding. By having these documents in place, the spouse can retain decision-making power for their partner in the event of emergencies, illness, or injury. A HIPAA release form granting the spouse access to medical records should also be executed to coincide with the Healthcare Power of Attorney.
Creating Wills And Trusts
Same-sex couples should also create trusts and individually have their own Last Wills and Testaments. These documents can be used to make sure that the spouse remains in charge of the estate of the other spouse when they are deceased. These documents can also be used to make sure that the spouse receives distributions of assets from the estate of the deceased spouse. Together, these documents protect the spouse’s interests in the property of their partners even if the marriage is no longer recognized.
Considering Financial And Tax Implications
Same-sex couples will also want to talk to financial and tax planners to discuss the tax implications of their marriage no longer being recognized. While the ability to do certain things like file joint income tax returns and potentially for both parties to claim children as dependents may no longer be available, tax and financial planners can help produce strategies to minimize tax consequences for both spouses.
Planning Ahead For Legal Protection
Many of these things such as creating Wills, Trusts, and Powers of Attorney are a good idea even if Obergefell is not overturned. However, these are just some of the things that same-sex couples can do in anticipation of Obergefell being overturned.
Gudeman & Associates, P.C. has been helping people in Michigan with their estate planning needs since 1974 and our team has over 100 years of combined experience across various other practice areas. Please contact us today so that we can fully discuss how to protect you and your spouse.
