Ten years after the Supreme Court’s landmark Obergefell v. Hodges decision guaranteed marriage equality nationwide, the legal landscape is shifting again. A new petition before the Supreme Court challenges that precedent, and some states are pushing to roll back marriage rights. For same-sex couples, this creates renewed uncertainty.
While the 2022 Respect for Marriage Act ensures federal recognition of existing same-sex marriages, it does not guarantee that states will continue issuing new marriage licenses if the decision is overturned. In this climate, legal preparedness is essential.
To safeguard your relationship and family, consider putting key legal documents in place. These tools can help protect your rights, covering healthcare decisions, asset distribution and parental authority, regardless of future legal changes.
Why Legal Protection Matters
Marriage provides critical protections: hospital visitation, inheritance rights and parental recognition. If marriage equality is overturned, states could deny licenses to same-sex couples and refuse to recognize existing marriages. Although the Respect for Marriage Act requires states to honor valid marriages from other states, it does not guarantee the right to marry everywhere.
And without marriage, couples risk losing automatic rights such as making medical decisions for a partner, inheriting property without a will or being recognized as a legal parent. Proactively creating legal documents can help replicate many of these protections.
Essential Legal Documents
There are a number of legal documents that can help replicate the protections heterosexual couples are offered and ensure your rights are respected. Here’s a breakdown of the most important ones to consider:
- Revocable Living Trust: A trust allows you to manage and distribute your assets without going through probate. It ensures your partner can access property and financial resources according to your wishes, even if your marriage is no longer legally recognized.
- Last Will & Testament: Your will designates who inherits your assets and can name guardians for children. Without it, state laws may exclude your partner from inheritance rights.
- Healthcare Power of Attorney: This document authorizes your partner to make medical decisions on your behalf if you're unable to do so. It’s critical in emergencies when hospitals may not recognize partners who are unmarried or who live in a state where marriage equality is overturned.
- Durable Power of Attorney: This gives your partner the ability to manage your financial and legal affairs if you become incapacitated, including paying bills, accessing accounts and handling property.
- Living Will: Also known as an advance directive, this outlines your preferences for end-of-life care, such as life support or resuscitation, and ensures your partner can advocate for your wishes.
- Hospital Visitation Authorization Form: This form guarantees your partner can visit you in medical facilities, especially in states that may restrict visitation rights to legal spouses or immediate family.
- Agent for Disposition of Remains: This document designates who can make decisions about your funeral and burial arrangements, preventing disputes or exclusion of your partner.
- Pet Care Directive: If you have pets, this directive outlines who should care for them and how, ensuring continuity and protection for your furry family members.
- Tangible Personal Property Memorandum: This supplement to your will allows you to specify who should receive personal items like jewelry, furniture or other heirlooms, helping avoid confusion or conflict.
How to Get Started
Putting legal protections in place may sound daunting, but it doesn’t have to be.
Start by seeking out attorneys who specialize in estate planning and family law, and who have experience working with LGBTQ clients. These professionals understand the unique challenges same-sex couples may face and can tailor documents to meet your specific needs. Ask for referrals from local LGBTQ organizations or community centers, or use directories like the National LGBTQ+ Bar Association’s “LGBTQ+ Family Law Attorney Directory.”
If hiring an attorney isn’t feasible and you’re a member of an ARAG legal insurance plan, consider using DIY Docs. It allows you to create wills, powers of attorney and healthcare directives from attorney-reviewed, state-specific document templates.
Once your legal documents are created, make sure to review and update them regularly, especially after major events like moving to a new state, having children or acquiring significant assets. It is recommended to revisit your documents annually to ensure they reflect your current wishes and relationships.
Finally, keep your documents in a safe, accessible place. Share copies with a few trusted individuals, like your partner, close friends and healthcare providers.
Staying Informed and Engaged
As the future of marriage equality faces renewed legal scrutiny, same-sex couples have every reason to feel uncertain – but also every opportunity to take control.
That’s why legal preparedness is more than just a precaution – it’s a way to safeguard your rights, ensure your wishes are honored and maintain your peace of mind, no matter what challenges lie ahead.
With ARAG legal insurance, you have access to a network of attorneys who can help you draft and execute the documents that matter most. By working with a network attorney, you can gain peace of mind knowing your relationship, family and future are protected, no matter what changes may come.
