With the new administration taking office in January, LGBTQ+ couples across the country are worried their legal marriages might lose their protections that were given in the Obergefell v. Hodges decision and the 2022 Respect for Marriage Act.
Before those decisions, LGBTQ+ marriage protections were a patchwork of state laws and had no federal protections. While some states allowed LGBTQ+ marriages with full rights, others only allowed civil unions or no protections at all.
In addition, the Defense of Marriage Act passed in the 1990s gave federal benefits to only marriages between a man and a woman.
While it is unlikely all of the recent protections will be overturned, it is essential to ensure your estate plans are up to date and clearly state what happens when you die just in case the worst-case scenario happens.
The attorneys at The Orlando Law Group have a long history of working with LGBTQ+ couples before the Obergefell decision and afterward to ensure their assets and wishes are protected regardless of the laws about same-sex marriage laws.
Before Obergefell
For decades, the United States has been working on how it treats LGBTQ+ couples who want to get married.
In the 1970s, after the Stonewall Riots in New York City, there were several key steps forward and backward toward building equality in marriage on a state and federal level.
But it was bleak for couples who didn’t establish estate plans that legally directed the division of assets after death. If there wasn’t a will or trust or any other type of tool for estate planning used, the courts would decide how the assets of the deceased were split.
In many states, including Florida, that meant the surviving member of the couple had virtually no rights to any of the assets if contested by the family of the deceased. It was truly heartbreaking to see story after story of LGBTQ+ individuals watching a lifetime of shared assets being taken away because of the hate of other family members toward the deceased’s lifestyle.
Perhaps even worse was if one person of the LGBTQ+ couple was incapacitated in the hospital. The other half of the couple had no rights unless granted by blood relatives.
However, a legally binding estate plan for LGBTQ+ couples was a way to clearly state to the court the intentions of the deceased and for medical care.
What did Obergefell do?
Adding to the confusion was that some states – like Massachusetts and Washington – legally recognized an LGBTQ+ marriage whereas some states – like Florida and Wyoming – had statutes preventing LGBTQ+ marriage.
In a straight marriage, if you are married in one state, your marriage is recognized and validated in every state.
But that was not the case with LGBTQ+ marriages. Before Obergefell, if an LGBTQ+ couple was married in Maine and moved to Tennessee, the marriage would not be recognized by the state of Tennessee.
This meant you may not be the first of kin notified in an accident. You could be legally prevented from visiting a loved one in the hospital. The issues were endless.
In 2015, the Obergefell case came to the U.S. Supreme Court. That case came about because Jim Obergefell was prevented from putting his name on his late husband’s death certificate.
Shortly after his husband’s diagnosis of ALS, they traveled to Maryland and were legally married in that state. However, they lived in Ohio, where same-sex marriage was still illegal.
The case relied on the 14th Amendment, passed to give protections to African Americans after slavery. That amendment stated:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The U.S. Supreme Court agreed and ruled that an LGBTQ+ marriage in one state was legal across the country, just like a marriage between a man and a woman.
However, the federal government still didn’t fully recognize LGBTQ+ marriages.
How did the Respect for Marriage Act impact LGBTQ+ marriages?
In the 1990s, the Defense of Marriage Act was passed and signed into law by President Bill Clinton creating legislation that codified a marriage was between a man and a woman and that LGBTQ+ marriages were not eligible for federal benefits.
Over time and through a variety of legal actions, many of the provisions of DOMA were overturned by the courts and administrative actions.
For instance, in 2013, a court decision gave LGBTQ+ married couples full tax benefits, immigration benefits and military benefits. The next year, the Justice Department gave same-sex couples benefits such as prison visits and the denial of testifying against a spouse.
After the Obergefell decision, it appeared that gay marriage was the law of the land, but after Roe v. Wade was overturned in the Dobbs case, concerns started rising that Obergefell was in line to be overturned, especially after some justices and lawmakers said they thought it should be revisited.
Without the benefits in legislation, it would be easier to reverse progress on rights for LGBTQ+ couples.
The result was the passing of the Respect of Marriage Act in 2022 with bipartisan support. This act officially overturned the Defense of Marriage Act and codified equal rights for marriages of all types by the federal government.
Can we go back to before Obergefell?
Very quickly, the answer is yes, but it won’t be easy.
First, the court would need to overturn Obergefell to return the issue of marriage to the states, as it did with the Dobbs decision on abortion. There is a key difference between the two cases though.
In the Dobbs case, the court ruled that abortion was not an inherent right as it was not common before the 20th Century. In Obergefell, marriage was determined to be a fundamental right and LGBTQ+ marriage was allowed because of the equal protection clause.
Of course, that decision was a 5-4 decision in a court with a court that had a majority liberal makeup. Today, the court is conservative, so overturning Obergefell is a possibility.
If so, that could allow states to reenact their ban on same-sex marriages, but they would still be legal in many states – and federal benefits would still apply to any LGBTQ+ marriage.
What is unknown, however, is if you were married in Florida from 2015 to today, and Obergefell is overturned, is your marriage still legal? It’s just unclear how far a court would go in overturning the law and we wouldn’t know until the Supreme Court ruled.
There is better news on federal benefits. It takes 61 votes to pass most legislation in the U.S. Senate because of the rules on filibusters. The Respect for Marriage passed with 61 votes, with several Republicans crossing over to vote for the bill.
In the next Congress, it would take several Democrats voting to strip LGBTQ+ couples of their rights – something that would be doubtful to happen.
However, the filibuster rules could also be changed by the Republicans in charge of the Senate, who objected to the change when Democrats controlled the Senate.
It is a possibility and that’s why you need to ensure your estate planning is current and legal.
What to do to ensure an LGBTQ+ marriage is protected
While we can hope that LGBTQ+ marriage remains the law of the land, it’s best to not let your loved ones’ future be left to hope.
No, you need to take action soon to ensure you have legal protections, such:
- A current will that states
- how assets are distributed,
- how children are cared for after death,
- any other provisions that you believe are important, and
- instructions for a funeral and burial.
- A medical directive that includes who has the right to end life support and who has visiting privileges in the hospital.
- Trusts that can provide income for the living partner or children.
- Proper titles on houses, cars and other large items.
There are several other aspects of an estate plan that should be looked at to try to ensure protection in case the Respect for Marriage Act and/or Obergefell decision are overturned. While no action is completely immune from new legislation or court rulings, having your wishes in legal documents gives the courts an instruction manual for your final wishes.
While there is nothing imminent on same-sex marriage at this time, it is a possibility change could be coming. Besides, even if same-sex marriage remains the law, estate planning is an essential step for all couples.
After all, if estate planning is not complete, the courts will be forced to guess what couples and individuals want to have after their death, regardless of who you love and marry.
The attorneys at The Orlando Law Group can help LGBTQ+ couples with estate planning, legal protections and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
Last Updated on November 18, 2024 by The Orlando Law Group
