Proactive Steps In Case Marriage Equality Is Overturned
On August 11, 2025, the Supreme Court was formally asked to overturn marriage equality for gays and lesbians. The wait begins to find out whether the Court will take the case.
I know that this brings anxiety and apprehension, especially to the more than 700,000 legally married same-sex couples in the United States. I’ve heard from attorneys who believe that unwinding marriage equality would be unlikely and difficult, and that even if the Supreme Court reverses, marriage equality will still be legal in the states where it was legal before the Obergefell decision. While that may be so, the concerns are very real about how this could impact our rights, our legal status, and our finances. Here’s what I’d want you to know: we’ve been here before. We know how to protect LGBTQ+ relationships, whether married or not. There are steps we can take legally and financially, and there are professionals, including attorneys and financial planners (like me) who know what to do because we’ve been there before.
How can we be proactive about protecting our relationships?
We don’t know whether the Supreme Court will take the challenge to marriage equality. Even if they do not, or if the issue is resolved in favor of marriage equality, more than 600 anti-LGBTQ bills have been introduced around the country in 2025 alone. We need to remain alert to protect ourselves.
The issues of married vs unmarried are complex. Marriage provides more than 1,100 benefits and privileges. For those who are unmarried yet committed to one another, the financial issues are substantial, so much so that I earned my Accredited Domestic Partner Advisor (ADPA) designation.
The major areas that are impacted are:
- Property ownership and titling
- Protecting our children
- Taking care of one another in sickness or injury
- Social Security & Pension benefits
- Taxation
- Medicaid and government assistance
- When one partner dies
Because the planning for unmarried people is so complex, and because we don’t know exactly what will happen yet, let’s focus on being proactive for the things we can handle.
Property Ownership and Titling
Jointly owned property is generally owned as Tenants in Common, Joint Tenants with Rights of Survivorship or Tenants in Entirety. There are reasons and tax implications for these designations. It’s more complex than it looks. If marriage equality is rescinded, these are matters that will need to be revised. It’s complex and expensive, so this is not on the short list to address.
Protecting our Children
While there have been significant improvements in how LGBTQ people create families, there can be concerns about how to ensure those parental rights will be respected. This is one area where a family law attorney experienced in LGBTQ issues is a must. Laws vary by state. Ask your attorney what documentation you should have readily accessible if there’s an emergency, such as adoption paperwork, marriage licenses, any necessary powers of attorney, etc. Having access to that paperwork may be vitally important. There are a number of ways that can be done. One of those is through DocuBank, discussed below. My clients can also store documents in AdviceWorks, though access to that site requires password and authorization for anyone else to access.
Taking Care of One Another in Sickness, Injury or Incapacitation
Marriage provides important benefits when someone is incapacitated by illness or injury, such as allowing the other partner to make certain decisions. Even married couples are advised to have a medical Durable Power of Attorney with HIPAA authorization identifying your spouse. Many doctors and hospital systems would encourage you to provide copies of your Power of Attorney and any other directives so they have them on file.
When someone is incapacitated, the able-bodied partner will need access to money and accounts. For this, you will need a financial Durable Power of Attorney. If you give financial power of attorney to someone, it does not automatically give them access to your accounts. Just as with your medical directives, you should be sure that your financial directives are on file with your financial account providers. This is important: If someone presents a Power of Attorney for my client, and I do not know who they are, I will not honor it until I can validate its authenticity. My first duty is to that client, who I know, have spoken to, etc. If I don’t know the person with the POA, then I am going to go out of my way to ensure that it is valid and represents the wishes of my client. Be sure those forms are shared and on file with financial managers. Don’t ignore this aspect. When someone is incapacitated or deceased, their partner will need money fast.
There should be a means to access your legal documents in the event of accident, especially when you’re out of the area that you live in. You should consider registering documents with the Secretary of State (if in NC), or an online service, such as DocuBank.
Online emergency document access allows immediate access to some of your legal documents. It allows medical professionals or first responders to access important information in an emergency. If there is an accident, and either both spouses are incapacitated, or one of them cannot be reached, then having access to those legal documents can be important. Emergency personnel and medical staff need to understand your directives as fast as possible. Some states (such as NC) have a Secretary of State registry for health care directives. There's also a national Living Will registry, though it is not a government regulated site. There are also paid services, such as DocuBank, which provides a wallet card with emergency information printed directly on it that provides access to a website where emergency personnel can access the documents you've designated as public. (Note: I can offer registration to DocuBank at a steeply discounted rate. I receive no benefit or compensation from that. It's simply a service that I believe is valuable and important and so I offer it.)
Social Security & Pension Planning
A significant part of retirement planning for a couple includes Social Security and Pension planning. This, too, can be complex and should be addressed when and if there is action to rescind marriage equality. One additional action step: If you were in a long-term committed relationship for more than 10 years before marriage equality became legal, make sure the Social Security Administration enters a claim for benefits on your behalf. Even if you cannot claim benefits now, make sure that your name and contact information is in the Social Security database. Rights, rules, and processes change with Social Security regularly, and you want to be sure your information is on file with them.
Taxation
The most significant impacts of taxation and marriage has to do with property ownership and estate planning considerations.
For those who own real estate or other valuable property together, the taxation is determined by how the property is titled and percentage of ownership. Even with marriage equality, there are differences by state. Nine states have community property laws that impact property ownership.
Estate taxes are a different matter. There’s often a focus on federal taxation, however, state taxes should not be ignored. Federally, beginning in 2026, any single person with an estate valued at $15 million or less will not pay estate tax. If that person were married, there are marital deductions and benefits that essentially double that amount. There are only an estimated 500,000 Americans who exceed that threshold.
State estate and inheritance taxes will impact many more people. Twelve states and the District of Columbia impose estate taxes, while six states levy inheritance taxes. Maryland is the only state that imposes both an estate and an inheritance tax. Many state estate tax exemption amounts are significantly less than the federal exemption. Anyone with a net worth of $1,000,000 or more should discuss this with a Certified Financial Planner.
Long Term Care and Medicaid Planning
Medicaid planning is another area where there are benefits for legally married couples. There’s a 5-year lookback period that can have significant impacts on benefits. For unmarried people, Medicaid planning is much more complex. Ownership of homes and assets could be affected. Those impacts can be mitigated with long term care planning. For anyone who believes that they may need to use Medicaid, the time to think about this is early in retirement. This is a topic you should discuss with your Certified Financial Planner and/or Elder Law or Medicaid Law Attorney.
When A Spouse Dies
The impact of marriage equality on protecting spouses and passing property, investments, and other things of value cannot be understated. Before marriage equality, and today for unmarried people, many estate distributions were decided by state laws. Even people who had been together for decades lost their homes and everything they’d built together because state intestacy laws gave that property to the biological families of their deceased partner. This is one topic that should be addressed now. If marriage equality is overturned, any estate planning will need to be revisited.
If you have a spouse, partner, or children you want to protect, and especially If you have any concerns about how your biological family members will act after you die, then speak to an attorney who focuses on LGBTQ issues. They can guide and prepare the right documentation, such as a will or a trust. Please do not rely on an online DIY solution. With this latest attack on marriage equality, we are talking about losing essential rights, and that raises the need for as strong a protection as possible. Note that while trusts can be a powerful tool for estate planning, they bring a certain level of tax planning that should be discussed with a Certified Financial Planner.
The Short List of Steps Everyone Should Take
- To protect your children, talk to a Family Law attorney
- Ensure your beneficiaries on any employer benefits, life insurance policies, IRAs, etc. reflect your intended beneficiary. Provide specific identifying information about them, such as address, relationship, and/or Social Security number
- Make sure investment accounts, bank accounts, etc. have a Payable-On-Death (POD) or Transfer-on-Death (TOD), and that they also have that information.
- Make sure you have the documents on The Essentials List (below). Again, please do not use online fill-in-the-blank services for this
- Know where your documents are for yourself, spouse, and children and ensure they are accessible in an emergency
The Essential Documents List
- Durable power of attorney for finances/property
- Health Care power or attorney (or health care proxy)
- HIPAA Privacy Authorization Form
- Health Care Directive & Living Will
- Any adoption paperwork
- POD/TOD on any financial accounts; review beneficiaries on employer benefits
- Will or Trust
- DocuBank and/or Secretary of State Registry and/or Living Will Registry
As always, if you have any questions, please reach out. To schedule a consultation, click here.
