Estate Planning & Elder Law Blog

In the event of Obergefell being overturned, it could leave same-sex couples in states like Michigan uncertain about their legal standing. While this is unsure, now might be the time to take a closer look at your estate planning to make sure your assets—and your loved ones—are protected, no matter what happens.

What Would Happen If Obergefell Was Reversed?

If Obergefell were ever reversed, marriage laws could be handed back to individual states. This means states like Michigan could decide whether they will continue to recognize same-sex marriages. If a significant legal change were to happen and Michigan stopped recognizing same-sex marriages, couples could lose the legal rights that come with marriage, like inheritance advantages, medical decision-making, and tax benefits.

Why Should You Review Your Estate Plan?

Whether or not the legal landscape changes, it’s always a good strategy to make sure your legal documents are up to date. A solid estate plan helps protect your assets and your family.

Here’s a checklist of important things to consider:

1. Review Your Will and Trusts

• If same-sex marriage legal recognitions were to change, inheritance of your assets could be impacted. Make sure your beneficiary designations are updated and your Will or Trust designates who should receive your personal property. If you have a Trust, ensure it reflects your wishes and names your spouse as a beneficiary if that’s your intention.

2. Check Your Beneficiary Designations

• Many assets—like life insurance policies, retirement accounts, and bank accounts—let you designate beneficiaries. These designations are essential to making sure that your assets don’t pass through the probate court system and to guarantee that you control where the asset is going. Make sure the beneficiary forms are up to date and list your spouse, so there’s no confusion about who should inherit.

3. Set Up Powers of Attorney and Healthcare Directives

• If a marriage were to be invalidated, your spouse might lose the right to make medical decisions for you. A durable power of attorney for healthcare can ensure your spouse, or whomever you choose, has the legal authority to make those decisions on your behalf if you're unable to. You should also have an advance healthcare directive (or living will) that lays out your treatment preferences.

4. Think About Your Tax Filing Status

• Talk to an accountant or tax advisor to understand your filing status and what steps you need to take to minimize any impact.

5. Review Property Ownership

• In Michigan, how you own property matters. Make sure you and your spouse are still on the same page about how your major asset—like your home, bank accounts, and vehicles—are titled. Consider options like joint tenancy with right of survivorship, which could help protect your spouse’s rights.

6. Consider a Prenuptial or Postnuptial Agreement

• A prenuptial or postnuptial agreement can help clarify how assets will be divided in the event your marriage is legally challenged or in the event of divorce. If you already have one, it’s a good idea to review it to make sure it reflects your current situation.

7. Prepare for Guardianship of Children

• If you have children, make sure your estate planning documents clearly name a guardian for them, in case anything happens to you. If your circumstances change, you’ll want to be sure your spouse or partner is legally recognized as the guardian in the event of your death.

Final Thoughts

As the political landscape changes in the United States, it is important to control the things that we can control. Updating your beneficiary designations and reviewing, or completing, an estate plan, is an excellent way to make sure that your wishes are known and executed in the event of your incapacity or death. Working with an experienced attorney who can advise on legal tools that will help accomplish your goals is extremely important, especially as we navigate this uncertain future.

By reviewing your estate plan now and making sure everything is properly in place, you can help protect your rights and ensure that your wishes are carried out, no matter what the future holds.

If you’re unsure where to start, consulting with an experienced estate planning attorney can help guide you through the process and ensure that your estate plan reflects your current goals and legal needs.