Estate Planning for Same-Sex Couples After Obergefell v. Hodges

On June 26, 2015, the U.S. Supreme Court held that the 14th Amendment requires states to license and recognize marriages between people of the same sex. My purpose isn’t to analyze that case; you’re on the Internet already, and you can probably find plenty of people willing to tell you all about it! Rather, I want to discuss the estate planning effects of this decision.

Last year, I discussed estate planning for same-sex couples (and it’s a bit dated now), and we talked about three areas where spouses have rights involving estates:

  • Same-sex spouses can now be surviving spouses under Missouri’s intestacy laws
  • Same-sex spouses can “take against the will”
  • Same-sex spouses are more likely to be named as guardians or conservators for a disabled person


Under Missouri law, if you die without a will, the first person in line to inherit your estate is your surviving spouse (and if you have children, they’ll be sharing that “first in line” spot), if you have one. Prior to Obergefell, a same-sex spouse in Missouri would probably have been bypassed without a will specifically providing for that spouse.

So what does that spouse get? In Missouri, a spouse of a person that dies without a will receives:

  • The entire estate, if there are no children (or their descendants–in the statute, it actually says “issue” rather than “children”) of the deceased person,
  • $20,000 plus one-half of the remaining estate, if there are children, all of whom are also children of the surviving spouse, or
  • One-half the remaining estate, if there are children and at least one of them is not also a child of the surviving spouse.

Taking against the will

A spouse is allowed to “take against the will,” meaning that a spouse can reject whatever their deceased spouse left to them and take a portion of the estate fixed by statute. I’ve never come across a person that wanted to disinherit his or her spouse, but the right to take against the will mostly prevents a person from doing so.

Depending on whether there are surviving descendants of the deceased person, a spouse could receive one-third or one-half of the estate if he or she opted to take against the will.

Guardians and conservators

If a person becomes incapacitated or disabled, a court may need to appoint a guardian (who handles the person’s day-to-day life) or conservator (who handles the person’s finances) to take care of the things a disabled or incapacitated person cannot.

In Missouri, there is an order of priority for naming guardians and conservators–one that tries to get a choice out of the disabled or incapacitated person, if at all possible.

Here’s the order:

  • First, if the person can name and communicate their choice at the hearing, that person
  • Second, a person named in a durable power of attorney, under certain circumstances
  • Third, the spouse or other close adult relatives
  • Fourth, any other eligible person

If no planning is in place, and the disabled person cannot make a choice, a spouse is one of the possibilities.

So, are there still estate planning needs for same-sex couples?


These rules–particularly the rules about intestacy and naming a guardian or conservator–are still “if all else fails” kind of rules. Proper planning allows you to make key decisions about your future and your estate:

  • Who will take care of your minor children?
  • How do you want your estate distributed? Do you want to provide for charities or people outside your family?
  • Do you need to plan for the estate tax?
  • Would you prefer for your estate to avoid probate, if possible?
  • Would you like to protect beneficiaries that need government assistance or have significant issues that might affect their ability to keep what you give them?
  • Do you have a business you’d like to see survive your death?
  • Do you want to reduce or manage the family conflict that may arise after your death?
  • Do you want a say in who makes decisions about your life and your finances if you are unable to make those decisions yourself?

In short, if you are in a same-sex marriage, you and your spouse are better protected if you do no planning–but it would be even better to take control of your future and your legacy and plan accordingly.


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