In 2015, the Supreme Court of the United States defined a federal constitutional right to marriage in the landmark 5-4 decision Obergefell v. Hodges. When Donald Trump ran for President of the United States, one of the promises he made was that he will choose conservative judges to fill vacancies in Article III federal courts, up to and including the Supreme Court. Now, President-elect Trump will have one seat to fill immediately upon taking office, replacing the late Justice Antonin Scalia and returning the Supreme Court to a 5-4 conservative majority.
Ever since the Court ruled that there is a constitutional right to marriage in Obergefell, conservative groups have been clamoring to have it overturned, returning regulation to the states. They think they have an opening in a new Republican president with a slim Republican majority in the Senate. People in the LGBTQ community are now worried that marriage equality opponents my now try to overturn Obergefell and return the country to the uneven hodgepodge of laws that existed before 2015. While this now seems unlikely based on the current political atmosphere, the fear is real.
No matter what happens with the law, it is still prudent to have your estate in order. At the very least, you should protect your assets with a will and your medical decision-making with an advance medical directive (living will). Also keep your transfer-on-death account (e.g., life insurance, bank accounts) beneficiary designates up-to-date and consider having a financial power of attorney in place as a contingency for incapacity. In the unlikely event that Obergefell is overturned, having an estate plan in place will help turn back challenges to your wishes and distribute your assets to your loved ones as you alone see fit.
This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.
Philip R. Yabut, Esq. || 1411 H Street, NE, Washington, DC 20002 || (202) 670-2429 || pyabut@prylaw.com
This morning, the Supreme Court struck down provisions of the 1996 Defense of Marriage Act (DOMA) as unconstitutional. In a 5-4 opinion, Associate Justice Anthony M. Kennedy, writing for the majority, states that "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution." In the other marriage equality case, also a 5-4 decision (Chief Justice John G. Roberts writing for the majority), the Court ruled that the petitioners in the California Proposition 8 case did not have standing to appeal, which means that the trial court's decision invalidating Proposition 8 stands and California can resume recognition of same-sex marriages.
As of this writing, seven states (CT, IA, NH, MA, NY and VT) and the District of Columbia have laws legalizing same-sex marriage. Gov. Christine Gregoire just signed a bill legalizing it in Washington, which will start recognizing same-sex unions in June, and Maryland Gov. Martin O'Malley did the same this past week. Advocates are steadily making inroads, though 29 states prohibit it by constitutional fiat and 12 others through statute, and the Defense of Marriage Act (DOMA), passed in 1996, prohibits the federal government from recognizing same-sex unions. Opponents continue to decry it as a threat to the institution of "traditional" marriage. There have been few studies on that subject, and, to be sure, the first state to legalize same-sex marriage (MA) did so only in 2004, but early trends suggest that there have been