What Same-Sex Couples Can Do Now to Protect Themselves
Nearly a decade ago, the Supreme Court’s 2015 decision in Obergefell v. Hodges legalized same-sex marriage nationwide, guaranteeing the same rights and responsibilities as opposite-sex marriages. That decision was a watershed moment for LGBTQ+ rights. But today, with a conservative majority on the court, questions are being raised about whether Obergefell could one day be overturned — just as other long-standing precedents have been.
For many LGBTQ+ couples, the possibility of losing marriage equality is deeply unsettling. Just yesterday, I met with a same-sex couple who have been together for 27 years. They’ve never married, though they’ve often contemplated it — and now, understandably, they’re worried that waiting any longer could put them at risk.
Why the Concern Now?
Some conservative legal scholars and politicians are openly suggesting that Obergefell should be revisited. Justice Clarence Thomas himself has written that the case was wrongly decided. While no case is yet before the Court, the movement is gaining traction, and couples across the country are paying attention.
If marriage equality were overturned, the practical effects could be devastating:
• States could again decide individually whether to recognize same-sex marriages.
• Couples legally married in one state could lose recognition in another.
• Federal benefits tied to marital status — from Social Security survivor benefits to spousal tax treatment — could be thrown into doubt.
This uncertainty is leading many LGBTQ+ couples to ask the critical question: what should we do now to protect ourselves and each other?
What Same-Sex Couples Should Do Now
Whether you are already married or have chosen not to marry, there are important steps you can take right now to preserve your rights and protect your relationship:
• Get your estate planning documents in order. Every couple needs wills, trusts, financial powers of attorney, advance medical directives, and HIPAA authorizations. These documents allow your partner to make decisions for you, inherit from you, and be legally recognized as your chosen agent — regardless of shifting marriage laws. (See our prior articles on LGBTQ+ planning).
• Consider marriage while it is still recognized nationwide. While marriage is a deeply personal decision, it currently provides hundreds of federal and state rights and protections. Even if Obergefell is overturned, existing marriages may be “grandfathered” in and still recognized.
• Review property ownership. Titling property jointly with rights of survivorship ensures that if one partner passes away, the other automatically inherits, even if marriage recognition is restricted in the future.
• Review beneficiary designations. Retirement accounts, life insurance, and other financial assets pass directly to named beneficiaries. Make sure these are up to date and coordinated with your estate plan.
• Consider a domestic partnership agreement or cohabitation agreement. For couples who choose not to marry, these contracts can help secure rights related to property, financial support, and decision-making.
• Think about children and guardianship. If you have minor children, guardianship provisions in your will are critical to ensure your wishes are honored. For adoptive or non-biological parents, extra protections may be needed.
• Revisit your plan regularly. The political and legal climate can shift quickly. A review every few years — or sooner if the law changes — ensures your protections remain strong.
The Bottom Line
No one knows for certain whether Obergefell will be overturned. But just as with other areas of the law, the best protection comes from planning ahead. Same-sex couples — whether married or not — should take proactive steps now to make sure their wishes, rights, and capacities as partners are respected and enforced.
If you or someone you love is in this situation, now is the time to sit down with an experienced estate planning attorney — such as those of us here at the Farr Law Firm — to ensure every possible safeguard is in place. Our firm is always family-friendly, regardless of what your family looks like.