What does Dobbs mean for estate planning for same-sex couples?

The U.S. Supreme Court’s recent ruling overturning Roe v. Wade could impact estate planning for same-sex couples and should have them taking a good look at their estate plan. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that women do not have a constitutional right to an abortion. It is a remarkable opinion in that Roe has been the law of the land for almost 50 years, and it is rare for the court to take away a recognized constitutional right.

In his concurring opinion, Justice Clarence Thomas explicitly stated that the court should revisit other substantive due process rights, including the right to contraception and the right to same-sex marriage. With the current makeup of the Supreme Court, these rights are not safe according to a recent article on Vox.com “Could Clarence Thomas’s Dobbs concurrence signal a future attack on LGBTQ rights?”

“No one should be confident that this majority is done with its work,” liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote in their dissent. The other rights now at risk “are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.”

Given that stark and tragic possibility, estate plans for LGBTQ couples need to be put in in place to protect their basic rights that come with marriage. Yes, a good estate plan can protect your relationship and family. With the use of a will and/or a revocable living trust you can protect what matters most to you by designating who is the guardian of your children in your absence and making sure that your property passes to whom you want, how you want, and when you want. By not having an estate plan, you leave those decisions to the laws of Wisconsin.

It’s also important to make sure you have a living will, health care power of attorney, and financial power of attorney in place so that your loved one can be with you if you are ill, as well as access your bank accounts and your health care records seamlessly when needed. And that’s true whether a couple is married or not.

While there’s nothing estate planning lawyers can do to protect your right to be married, with the use of these estate planning tools we can protect what matters most to you and ensure that your loved ones are cared for the way you want, and the way they should be.

For almost two decades Rick Coad has been recognized as a leading attorney in Madison, Wisconsin. Rick is the owner of Coad Law Office, where he focuses on designing estate plans for his clients to help them avoid the conflict and uncertainty that comes from not having a plan in place.

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