I have the privilege of practicing law in Washington State, which, as you are no doubt aware, recently joined the ranks of States recognizing gay marriage. I cannot overstate how proud everyone that worked to achieve this goal is, and rightly so, but this change in law has had an interesting side effect. I am now asked, on a near daily basis: “Now that gay marriage is legal, why should gay couples be any more concerned with estate planning than straight couples?”
My response to this is that, first off, straight couples should be far more concerned with estate planning than they generally seem to be, and second, as important as Washington legalizing gay marriage is, it really hasn’t changed anything for practical purposes. Before Washington legalized gay marriage it was among the ‘everything but marriage’ States, which meant that gay couples in domestic partnerships could already take advantage of all the benefits that straight married couples could, as far as Washington was concerned. The real source of many of the problems that gay couples faced was, and remains, the federal government.
No matter what State they may reside in, and no matter what stance that State takes towards gay marriage, the federal government still considers gay couples to be legal strangers, that is, unless they take steps to circumvent that default status. The obvious problem that this causes has to do with your taxes, but there are others that many people fail to consider. For example, imagine that a married gay couple live in Washington State without an estate plan in place. One of them used to live in Texas, and still owns a fair bit of property there. Imagine a terrible accident occurs, and the individual who owns property in Texas dies. If they had been a straight couple, the surviving spouse would automatically inherit either half or all of the property in Texas, depending on when it was purchased and a few other factors. As a gay couple, the surviving spouse would have no right to the property in Texas at all, and instead that property would automatically pass to the deceased spouse’s surviving relatives, regardless of what their wishes had been.
This scenario happens unfortunately frequently, because most States that do not allow gay marriage also do not recognize gay marriages from other States. This problem has also resulted in several high profile instances, in which, a married gay couple were visiting a State that does not recognize gay marriages, one of them became injured or ill, and the other was refused hospital visitation rights, or the rights to make healthcare decisions for their disabled spouse.
When I tell people about these sorts of situations I often hear “Well, what can you do if a State won’t recognize your marriage?” The answer to that is “A lot.” Even States that do not recognize gay marriage do recognize community property agreements and powers of attorney, and these, along with a few other important legal instruments will guarantee that both you and your spouse are protected, even if your marriage isn’t.
Hopefully the Defense of Marriage Act will soon be recognized as the inherently unequal and bigoted piece of legislation that it is, but until that happens a good estate and disability plan is the gay couple’s best defense against outdated laws.