On June 26, 2015, in a 5-4 decision in Obergefell v. Hodges, the U.S. Supreme Court held that there is a fundamental Constitutional right to marry which includes same-sex couples. The Court also held that same-sex marriages performed in one state must be recognized by every other state. Justice Kennedy, writing for the majority, started the opinion “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, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

So, now it is clear that same-sex marriages are legal nationwide and, wherever they are performed, they must be respected in every state.

But, what does this mean for our clients?

For clients who already are married:

1. They can travel within the United States without concern that their marriage will not be respected. However, their marriage may not be respected in most of the world.
2. If they choose to divorce, they may do so wherever they are living. (States typically do not offer divorce to couples whose marriage is not recognized.)
3. They may be able to seek a state income tax refund for past open years.
4. They can file state income tax returns as a married couple.
5. 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.

Of course, just because LGBT couples now may marry, that does not mean that all LGBT couples are married. According to a 2011 UCLA study, the rate of marriage among LGBT couples is significantly lower than among traditional couples.

Estate planning remains advisable for all couples. But, such planning remains critical for unmarried couples, including unmarried LGBT couples.

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
www.aaepa.com

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Steve Hartnett

Director of Education, American Academy of Estate Planning Attorneys

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