I’ve been asked to address what same sex couples can do to protect their current marital rights or to establish similar rights in the event the U.S. Supreme Court overrules or limits the rights affirmed in Obergefell v. Hodges. The short answer is that existing rights to execute wills, trusts, Powers of Attorney, and certain adoptions, provide some protections similar to marriage, but all fall short of providing all the rights and responsibilities of marriage as well as the presumption of parentage marriage provides.
Prior to the Obergefell decision, which affirmed the right of same sex couples to marry, with all the attendant rights and privileges, many family law and estate planning attorneys created alternatives to securing committed relationships of couples not allowed to marry. None of them replicated all the rights and responsibilities available to married people. With the right to marry confirmed in 2015, all of the alternatives used previously became unnecessary. Then came Dobbs v. Jackson Women’s Health Organization, which reversed Roe v. Wade, the case affirming a right to abortion based on privacy rights. The short version of the court’s decision is that because such privacy rights were not rights deeply rooted in our country’s history, they were not a federal right. States were free to grant that right, but did not have to. While the majority of the court claimed Dobbs would not affect any rights grounded in substantive due process, Justice Clarence Thomas, in a concurring decision, urged the court to reconsider Obergefell since the right to marry was based on a legal analysis similar to the one applied in Roe v. Wade, and because the Dobbs case cast doubt on substantive due process protections as well.
With good reason, the decision alarmed members of the LGBTQ community. Justice Thomas made real the potential invalidation of their marriages, and the prohibition of future marriages. Since we do not know if Congress will pass legislation to protect the right to marry, or if they will set limits and conditions on that right, many in the community are concerned and want to know what they can do to protect what they have, if married, and protect what they could have in the future if they are not allowed to marry.
If Obergefell is overturned or limited in its effect in some manner, we are able to use some of the same legal devices to protect some of the rights lost, but not all. I wish I could create a perfect checklist, but not knowing if the Court or Congress will place limits on the right to marry, even the most experienced lawyers working with LGBTQ families cannot anticipate every possible alternative. What I can provide is a list of actions which can protect certain rights. There are more than 85 legal rights conferred by marriage, and many of them, such as rights to social security benefits and the presumption of parentage for a child born during a marriage, cannot be granted by private agreements. To the extent rights and responsibilities can be protected by private agreement, there are several legal vehicles available.
1. Write a will. If a marriage is not recognized or cannot occur, a will can protect your wishes for the transfer of assets to your partner and any children of yours or your partner’s. Keep an updated list of personal property you want to leave each other. Name your partner as guardian of your children in the event of your death with a clear explanation that they were a co-parent. If there is another parent with existing parental rights, such a guardianship provision in a will may not be enforceable without that other parent’s agreement.
2. Immediately execute a Durable Power of Attorney for Health Care and Financial Decisions naming your partner as first choice and someone who will consult with your partner as second choice. This document will allow visitation in hospitals and ensure medical decisions are made by the person of your choice, rather than a hospital’s concept of “next of kin.” The Financial Powers of Attorney will allow your partner access to your funds to pay obligations.
3. Consider a living trust where you and your partner retitle all assets in the name of the trust leaving those assets to the other in the event of one of your deaths.
4. If a living trust is not appropriate or necessary given the nature of your assets, title property as joint tenants, giving each other a right of survivorship, and on bank, savings and investment accounts that allow it, name each other as the Paid on Death (POD) beneficiary so the funds go directly to your partner upon your death.
5. On insurance policies and retirement accounts, name your partner as beneficiary.
6. If you are planning a family, execute a custody agreement detailing the rights and responsibilities of the non-biological or adoptive parent. Work with an attorney who knows the options at the time you are planning a family to execute the documents that best protect parental rights. The legal strategies employed pre-Obergefell to accomplish adoption by both partners, or a limited guardianship may or may not work in the event Obergefell is overruled or limited.
7. If you live in a state that allowed legal marriage before Obergefell, consult an attorney in that state about what rights were provided before the federal right existed. It will inform your planning.
I consider the list in this article a first pass. Attorneys who represent LGBTQ couples and their families will be learning as the law moves through the system. It is fair to say that legal marriage has been the only route to providing full legal recognition to LGBTQ couples and their children. To move backward is something we all dread because we cannot preserve all those rights and responsibilities in other ways. As the law becomes clearer, attorneys will be attending to these issues.
Linda S. Balisle is the founder of the Madison law firm of Balisle Family Law Legal Counsel, S.C. She concentrates her practice in the area of divorce mediation, arbitration and, if necessary, litigation for high net worth clients and business owners, as well as complex jurisdictional issues, non-traditional families, and appellate practice.