Estate Planning for Same-Sex Couples in a Changing Legal Environment

Note: As this post indicates, the legal environment concerning same-sex couples is a changing one, and on June 26, 2015, the U.S. Supreme Court released its opinion in Obergefell v. Hodges, which held that states must license and recognize marriages between two people of the same sex. That means that a lot of this post is old news–but rather than take it down, I decided to leave this post, acknowledge that it is dated, and write something of a sequel to it, which you can find here.

For same-sex couples, estate planning is particularly important. Under Missouri law, spouses have particular rights and protections concerning inheritance, wills, and probate. For instance:

For a same-sex couple, the issue is that Missouri law does not recognize same-sex marriage, even those marriages from states that let same-sex couples get married. If Missouri doesn’t recognize the marriage, then there are no spouses, and protections like the one above are unlikely to apply.

However, as you may have heard, things may be changing. Earlier this month, the U.S. Supreme Court declined to take a number of cases winding their way through the federal courts involving states that have had their same-sex marriage bans struck down (note: link has a video that starts automatically). In those states (none of which are Missouri), those same-sex marriage bans are no longer in effect.

There’s been some change in Missouri as well. Earlier this month, a Jackson County judge ruled in Barrier v. Vasterling that Sections 451.022 and 104.102 of the Revised Statutes of Missouri and Article I, Section 33 of the Missouri Constitution violate the equal protection clause of the 14th Amendment of the U.S. Constitution, finding that Missouri’s refusal to recognize same-sex marriages from other states is unconstitutional. Additionally, the order prohibits the state from enforcing these sections or refusing to recognize same-sex marriages that were entered into in a jurisdiction that allows same-sex couples to marry. Missouri’s attorney general has announced that his office will not appeal the ruling.

So, where does that leave same-sex couples from an estate planning perspective?

For now, not much has changed. This is because the Barrier v. Vasterling decision was rendered by a circuit court, and no other court has to follow the decision. This because our state courts are divided into three layers:

  • Circuit Courts, which handle the finding of facts of legal disputes and apply the law to those facts
  • Court of Appeals, which handles all appeals and interprets the law
  • Supreme Court, which selects (for the most part) the appeals it will hear and makes final determinations about what the law says

Each layer is bound by the decisions of the courts above it; circuit courts are bound by the decisions of the Court of Appeals and Supreme Court, The Court of Appeals is bound by the decisions of the Supreme Court, and the Missouri Supreme Court is only bound by decisions of the U.S. Supreme Court.

In short, another Missouri judge might be persuaded by the reasoning of Barrier v. Vasterling, but he or she isn’t required to follow it. Although cultural and political trends seem to point toward the eventual recognition of same-sex marriage in Missouri, it would be premature to assume that a court would view a same-sex couple married in another state as spouses under Missouri law.

And that means that planning is a must. Estate planning allows same-sex partners to protect one another if one partner dies or becomes incapacitated. One of the purposes of estate planning is to put together a plan that fits your life and your situation–if the state’s default rules don’t fit, for whatever reason–proper estate planning can help you create a plan that works for you.

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