On June 26, 2015 United States Supreme Court issued an opinion of great importance in the area of estate planning for same sex couples. In Obergefell v. Hodges the Court addressed two questions. First, does the 14th Amendment to the United States Constitution require all states to issue marriage licenses to same-sex couples? Second, are all states required to recognize a same-sex marriage that was legally formed under the laws of a separate state?
By way of background, Jim Obergefell & his longtime partner, John Arthur, sought to enter into a legal marriage. They were residents of Ohio and Mr. Arthur was terminally ill with ALS. Ohio is a state that did not recognize same-sex marriages. Accordingly, they travelled to Maryland where same-sex marriages are recognized. They were married in the airport in Baltimore and quickly returned to Ohio where Mr. Arthur died shortly thereafter. When the State of Ohio issued a death certificate that failed to list Mr. Obergefell as the surviving spouse of Mr. Arthur, Mr. Obergefell sued the director of the Ohio Department of Health, seeking to compel recognition. After judicial decisions by the lower courts, the case was ultimately appealed to the U.S. Supreme Court, where it was consolidated with a few other cases addressing similar issues.
In ruling for Mr. Obergefell, the Supreme Court based its decision on the Equal Protection Clause of the 14th Amendment. On the first question, the Court held that it is a violation of the Equal Protection Clause to deny same-sex couples the right to marry that is already afforded to heterosexual couples. On the second question, the Court further held that it is also a violation of the Equal Protection Clause for a state to fail to recognize an otherwise legally valid same-sex marriage performed in another state.
It must be noted, however, that the Obergefell decision was not issued without controversy. When the Supreme Court issued its Loving v. Virginia decision in 1967 outlawing state bans on interracial marriages, that decision was unanimous. In contrast, with Obergefell there were four justices who refused to join in the majority opinion, each of whom issued a vehement dissenting opinion. Furthermore, there has been talk from some state governors and presidential candidates who have made it clear that they will not readily acquiesce to the decision. Nonetheless, as a decision of the United States Supreme Court, Obergefell is now the law of the land. By virtue of the supremacy clause of the United States Constitution, its holding supersedes the laws of the various states that ban or do not recognize same-sex marriage. So from our perspective, it certainly seems that a highly unsettled area of the law has now gained much more uniformity and we can engage in planning accordingly for affected clients.
In our next blog post, we will consider the estate planning impact of marriage, what are the plusses and minuses, and some thoughts on the circumstances when marriage is or is not advisable from an estate planning standpoint.
Please call us at 860-769-6938 if you have any questions about the issues presented above or if you care to discuss any other planning issues with us.