It used to be that estate and legal planning for same sex couples was drastically different than planning for opposite sex couples, since same sex couples were, by rule, not married. With the recent court decisions allowing same sex marriage, I’m contemplating whether this distinction remains true nonetheless. For now, at least, I believe the distinction remains important and that same sex couples should, for planning purposes, continue to treat themselves as unmarried. Here’s why:
Thanks to Judge Dale’s decision in Latta v. Otter, same sex marriage is currently legal in Idaho. However, that legal status is not necessarily set in stone. Governor Otter has filed a petition at the Ninth Circuit Court of Appeals to ask that Court to revisit the issue. I doubt the Court will agree, but it might. I doubt that it will overturn Latta, but it might. And, ultimately, the U.S. Supreme Court will likely weigh in on the subject. I predict that they will side in favor of same sex marriage, essentially for the reasons stated in Latta and other similar cases, but they might not.
What this all means for same sex couples planning their legal futures is that, while they are currently legally married, there may be days in the future when they are not legally married again. If we look out to 2035, for example, I anticipate that the law of same sex marriage will be well-established. But today it is not. As a result, if same sex couples are banking on their legal status as spouses as a key component in their legal life planning, I think they are making a mistake.
Here’s food for thought: a quick search of Idaho’s statutes reveals that the term “wife” is used in 96 separate statute sections, while the term “husband” appears in 101. Many of those statutes use the phrase “husband and wife” and give the same powers, duties, and obligations to both regardless of sex. But not all are that way. For example, Idaho Code Section 15-6-401 deals with the right of survivorship of a spouse to the couple’s real community property. It begins, “Any estate in real property held by a husband and wife as community property with right of survivorship shall….” What about estates in real property held by a husband and husband as community property with right of survivorship? Do the same rules apply? Who knows? And which same sex couple wants to test the law to find out whether they inherit the family house upon the death of their spouse?
Wise same sex couples should still be seeking custom estate and legal planning solutions on the assumption that there may be a day in the future (whether temporarily or permanently) when they are not married in the eyes of the law. All the usual tricks that we planning attorneys use for unmarried, but committed, couples (revocable living trusts, etc.) should continue to be employed in the case of same sex couples. I trust there will come a day when the legal status of same sex couples finds itself on firmer footing, but I believe today is not yet that day.
If you are in a same sex relationship and you have concerns about how your loved ones would be cared for in the event of your incapacity or death, please call an estate planning attorney like the Learned Lawyer!