As I’ve written before, recognition of same-sex marriage has been expanding rapidly in the United States. Illinois now joins the list of those states allowing same-sex marriage (in order of recognition):
- New Hampshire
- New York
- Washington (state)
- Rhode Island
- New Jersey
In addition to the states listed above, the District of Columbia allows same-sex marriage. Further, New Mexico has no state law allowing or denying such marriages. However, the most populous counties in the state allow same-sex marriage and are issuing marriage licenses to same-sex couples.
This expansion has even more significance in light of the Windsor decision, which held that the Defense of Marriage Act did not allow (or force) the federal government to treat same-sex married couples differently than traditional married couples in the same state. In addition, the IRS issued Revenue Ruling 2013-17, which provided that same-sex married couples will be treated as married for federal tax purposes, wherever they live, as long as the marriage was valid where performed.
While the rights of same-sex couples are expanding rapidly, estate planning is (still) even more important for same-sex couples due to the disparate treatment among the states. A marriage recognized by one state may not be recognized by another.
Let’s look at an example: John and Henry are a same-sex couple married under the laws of the state of New York, but living in Kansas. John owns a farm in Kansas, a state which does not recognize their marriage. Without an estate plan, John’s farm and other property would go to John’s family of origin under Kansas intestate succession laws and Henry would be left out. Kansas law would treat Henry as a legal stranger. If the couple moves to a state which recognizes their marriage, like Illinois, Henry would inherit personal property as a spouse. However, with an estate plan in place their state of residence at death would not change their dispositive scheme and John could override the laws of intestate succession in Kansas.
A complete estate plan is a good idea for anyone, but even more so for those in same-sex relationships, including marriage.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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