Estate Planning for Same Sex Couples

Estate Planning for Same Sex Couples

Jul 03, 2015

June 26, 2015 the Supreme Court’s landmark ruling in Obergefell v. Hodges, made it possible for all individuals to marry, regardless of their sexual orientation.

This means that the legal landscape for same sex couples has dramatically changed. Same sex couples now have legal rights upon death and incapacity that were not otherwise available prior to this court ruling.

Specifically, the landscape for same sex couples in estate planning has drastically changed. Same sex couples now have the same rights as opposite-sex couples. For example, spouses in same sex relationships are now “next of kin” which is extremely important but most particular for medical decisions, to name just one.

How Does this Ruling Affect Estate Taxes for Same Sex Couples?

Under Federal law, spouses enjoy an unlimited marital deduction. This means that when a person dies, his or her spouse will not incur any estate tax liability with respect to assets left by their deceased spouse. The “marital deduction” allows married couples to postpone any taxes due until the second spouse dies. Ultimately, a married couple is taxed once, at the second spouse’s death.

Same sex couples are now able to enjoy the unlimited marital deduction as would a heterosexual couple.

 How does this Ruling Affect Gift Taxes?

Generally, spouses can make gifts and transfer property to one another without incurring gift taxes. Now, the gift tax “marital exemption” should apply to married same-sex couples as well.

The legal implications of this ruling go beyond symbolic to monetary. The Obergefell case depicts how life changing the decision can be for same sex couples through its three plaintiffs that were involved.


In this case, James Obergefell wanted recognition as John Arthur’s spouse, who died from ALS. Obergefell wanted listing on his spouse’s death certificate as his spouse, like other widowers. With this ruling, same sex couples can now list as the spouse on death certificates.


Thomas Kostura was married to Army Reserve Sergeant First Class Ijpe DeKoe and every time they traveled across state lines to return home to Tennessee, he lost his status as “spouse”.  This meant that if DeKoe had been killed in action, Kostura would not have been eligible to receive all governmental benefits that opposite-sex partners of military members are entitled to.

This ruling made it possible for same sex couples to receive benefits available to opposite sex couples — whether by state or federal law, no matter what state they live in.


April DeBoer and Jayne Rowse chose to adopt four different special needs children.  Under Michigan law, however, no adoption could include two same sex parents.  This meant the same sex couple had to divide up who adopted each child.

This meant that the children each, legally, had only one parent — not two. This ruling changes that. It allows both DeBoer and Rowse to be listed as parents at schools, hospitals, doctors — or anyone else.

These three examples are only the tip of the iceberg when it comes to estate planning issues for same sex couples.

What was once a difficult process for same sex couples has been simplified. Our firm serves the Sherman Oaks and Glendale areas with planning for same sex couples. If you would like more information on contact our office for a free consultation (818)649-9110 or email

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