Due to the 2015 Supreme Court decision in Obergefell v. Hodges, marriage equality is now the law of the land. Same-sex couples now receive protections and rights that were previously only available to heterosexual couples, including an elective share of a spouse’s estate, homestead allowances, and numerous tax benefits. However, there are still issues and challenges that are unique to same-sex couples. Here at LDM, we recognize this and address the estate planning issues that are unique to same-sex couples in our comprehensive estate plans.

How does pre-Obergefell law affect my post-Obergefell marriage and estate plan?

Before Obergefell, creative estate planning was crucial to provide same-sex couples with even a fraction of the protections available to heterosexual couples. Some states recognized domestical partnerships or civil unions prior to Obergefell – however, Nebraska was not one of these states. These domestic partnerships or civil unions provided varying levels of relationship protection, depending on the state.

Once marriage equality was passed, states automatically converted these partnerships and unions to marriage, whether or not the couple intended to be married. If a client has previously entered a domestic partnership or civil union, it may be necessary to address the treatment of that partnership or union in a post-Obergefell landscape to discern whether there are any undissolved partnerships or unions with a past partner that could lead to legal entanglements down the road. The degree of these entanglements will depend in large part on what benefits were conferred by the state in which the partnership or union was entered, but there could be significant issues such as legal division of property with a former partner or spouse, or a declaration that a subsequent marriage to another person was void. Our goal is to help clients resolve these issues on the front end to ensure their property passes according to their wishes upon their death.

What if we are an unmarried couple?

Any couple that is not married, including unmarried same-sex couples, will need an estate plan in place if they want to provide for their partner upon their death. Without an estate plan in place, your estate is distributed based on Nebraska intestacy laws. These laws make assumptions about who should receive a person’s assets upon their death, based on their relationship with the deceased person. The law does not consider a person’s unmarried partner when determining who gets the estate assets.

Additionally, unmarried couples should be aware of Nebraska’s inheritance tax. This tax is assessed on the value of the decedent’s assets, based on the relationship between the decedent and the beneficiary receiving the assets. A surviving spouse does not pay inheritance tax. However, an unmarried partner receiving assets does not get this same inheritance tax treatment. As of January 1, 2023, an unmarried partner will receive $10,000.00 of assets inheritance tax-free. Assets above $10,000.00 passing to the unmarried partner are subject to a 15% tax rate.

What if we are a same-sex couple with children?

This will depend in large part on the legal and biological relationships between the two parents and their children. Some same-sex couples may decide together that they would like to have a child, while others may bring children from previous heterosexual or same-sex relationships. The best way to be certain about the enforceability of a non-biological parent’s rights is for the non-biological parent to adopt the child or obtain a parentage judgment.

Do we need to be worried about how the Dobbs decision will affect our marriage?

There is some concern and uncertainty right now about the future of marriage equality, due to the Supreme Court decision in Dobbs which narrowed the scope of substantive due process, which was the basis for many previous Supreme Court rulings on LGBTQIA+ rights. If decisions regarding same sex marriage were restricted or reversed, it would cause major issues for same-sex couples in many areas of their lives.

Specific to estate planning, it could nullify a couple’s existing estate plan. A couple should remain aware of the need to update their estate plan in the event that laws regarding same-sex marriage change. However, some experts are optimistic that the Supreme Court would not apply Dobbs to same-sex marriage. In fact, the Dobbs majority opinion specifically states that, unlike the dissent implies, the Dobbs decision should not be understood to cast doubt on precedents that do not concern abortion, specifically mentioning contraceptive rights and same-sex marriage as “inherently different” than the right to abortion.

The most important thing to remember is that estate plans should evolve with the changing laws as well as changing life circumstances of the couple. Reviewing your estate plan regularly and updating it as needed is the best way to ensure that it will effectuate your wishes upon your death.