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Same-Sex Marriage and Estate Planning after US Supreme Court Decision

In a 5-4 decision by the United States Supreme Court, Justice Kennedy, writing for the majority, stated: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The Petitioners in these cases seek to find that liberty by marrying someone of the same sex . . . .” Justice Kennedy concludes the opinion by saying: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Now that same-sex marriage is legal nationwide, every state must respect same-sex marriages performed in any other state.

With this decision, same-sex couples will have the following rights that every other married couple has:

  • They can travel within the United States without concern that their marriage will not be recognized. However, their marriage may not be recognized in other countries.
  • If they choose to divorce, they may do so wherever they are living.
  • They may be able to seek a state income tax refund for past open years.
  • They can file state income tax returns as a married couple.
  • They would get a state level gift/estate/inheritance tax marital deduction for assets gifted or left to their spouse, just like a traditional couple.

Simply because LGBTQ couples may now legally marry in every state does not mean they will. Thus, it is imperative for unmarried LGBTQ couples to create an estate plan; otherwise, should one of them die or become incapacitated, the significant other may not receive anything or have any rights.

dave-eastman  Contributed by Morris Hall, PLLC Arrowhead, Scottsdale and Phoenix Estate Planning Attorney and Partner, David T. Eastman.

What the Attorneys of Morris Hall, PLLC Can Do For You:
The attorneys at Morris Hall have 100’s of years of combined experience ensuring that families’ assets are protected from probate, unnecessary taxes, creditors, ex-spouses and Medicaid spend-down.  Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Carefree, Tucson, Oro Valley, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.



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