Family Law

Probate lawyers are taking steps to secure LGBTQ+ families’ rights in case Supreme Court limits them

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It’s been a bumpy road for LGBTQ+ families, and that road may become even more gnarled because there is a conservative majority on the U.S. Supreme Court.

Family law could look very different in the near future, especially for nontraditional families, who are concerned that their protections may not be as secure.

This is why many estate planners are advising that these clients create and make changes to their legal documents stat, says Matthew Erskine, managing partner and a trusts and estates attorney with Erskine & Erskine in Worcester, Massachusetts.

In the past, same-sex and nontraditional couples received few of the legal protections provided to spouses in traditional marriages, says Patrick Hicks, head of legal at Trust & Will, an online estate-planning company. This complicated the ability to designate a same-sex partner for medical or financial decisions; to serve as guardian for an unadopted child; or to receive assets upon death, Hicks says. Because of the limited legal protections, it was essential for same-sex couples to prepare carefully drafted legal documents for family and estate-planning purposes.

“Whether a reversal in the Supreme Court on Obergefell v. Hodges could invalidate previously obtained legal same-sex marriages is an unanswered question,” says Heather Hazelwood, founder and attorney with Ampersand Law in Durham, North Carolina. “As a queer woman in a same-sex marriage, this affects me personally as well as in my professional work.”

Matthew Erskine says estate planners are advising clients with nontraditional families to secure their rights. Photo courtesy of Matthew Erskine

This changed when the Supreme Court took steps toward equalizing the legal treatment of couples. But given the uncertainty arising from the changing Supreme Court, it’s very important to readdress family and estate-planning needs.

“It may also be necessary to review and update estate-planning documents to ensure the documents comply with any changes,” Hicks says. “Otherwise, any unaddressed issues may be left to resolution by family court or probate court—an uncertain result in any time, but particularly so with the uncertainty surrounding the Supreme Court.”

Don’t let courts choose

There are many presumptions for spouses that don’t apply to unmarried partners, so it’s important to be explicit and clear in the documents. For example, for married spouses with children, the surviving parent might have an automatic right to care for a child after one parent dies, Hicks says. This may not apply to nonbiological parents. As a result, it may be necessary to expressly state the preference for the other partner to have custody if the biological parent dies.

Hazelwood is advising her clients to make small revisions to the documents referring to their spouse by adding in language making the intent clear: Whether the marriage is considered legally valid at the time of death, the desire of the spouse—at the time of making the document—is to be treated the same at the time of their death.

The key is drafting for flexibility so that the wills, trusts and other documents follow the clients’ wishes rather than leave it to the courts to decide, Erskine says.

This includes drafting to avoid gender-specific pronouns. Ideally, Erskine recommends using the individual’s name rather than a pronoun. He also suggests broadening the powers of appointment to anyone other than creditors, the estate, themselves or creditors of t he estate.

“The incorporation of POAs into documents adds flexibility to plans but requires clients to come back for more frequent periodic reviews to go over and fine-tune the implications of powers and other concerns,” he says.

The real estate deeds also need to be reviewed.

Some states, such as North Carolina, have a special real property ownership status for married couples. There, it’s called “tenancy by the entirety,” and it has three benefits: Spouses function as joint tenants with right of survivorship at the death of one owner, meaning the surviving owner automatically becomes the sole owner with no additional court processes; it provides a level of creditor protection (so one spouse’s debts can’t attach to the value of the home); and it prevents one spouse from selling their ownership in the house without the permission of the other spouse, Hazel wood says.

“However, if a same-sex couple owns their home in tenancy by the entirety, and Obergefell v. Hodges is overturned, their marital ownership of the property could come into question,” Hazelwood says. If the ownership language on the deed fails, the default is “tenants in common,” which means that each owner owns a divided and separate share. This would cause any number of problems during a couple’s lifetime—and at the death of the first spouse.

“I have been advising my clients to consider changing the title to ‘joint tenants with right of survivorship’ via quitclaim deed so the surviving spouse can maintain that automatic full ownership at the death of the first spouse without additional court processes,” Hazelwood says.

Additionally, couples should consider the makeup of their assets and their probable estate value at death. The possibility of overturning the 2015 Obergefell decision makes the argument in favor of using revocable living trusts in estate plans very strong, she says. This is more complex, costly and time-consuming to establish, but it has many added benefits that may be appealing to same-sex couples.

Typically, the distributions after death stay out of the court process entirely, so the validity of their marriage under the law wouldn’t be relevant.

In other words, it’s better to be safe than sorry … always.

This story was originally published in the August/September 2021 issue of the ABA Journal under the headline: “Plan B: Probate lawyers are taking steps to secure LGBTQ+ families’ rights in case Supreme Court limits them.”

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