Prior to the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, same-sex couples could not marry in the United States. In the wake of that decision, a number of states, including Ohio, passed laws allowing same-sex marriage. A legally married couple is afforded certain rights and protections when it comes to decision-making for a disabled spouse, as well as the right to receive certain property from a deceased spouse.
There is concern in the wake of recent decisions that the Supreme Court could reverse Obergefell, which would prevent individual states from passing laws allowing same-sex marriage. If that were to happen, those in nontraditional and same-sex relationships would need to look into asset protection and estate planning strategies if they wish to leave an inheritance to each other or to grant each other the ability to make healthcare decisions for one another.
An understanding of the special considerations for those in nontraditional relationships, therefore, has renewed importance.
Understanding Same-sex rights in Ohio
Ohio laws give rights to spouses, parents, and children to make medical decisions on behalf of an incapacitated person and access the person’s otherwise protected health information. That right does not extend to a non-married partner. If same-sex marriages are no longer recognized, a partner could have no right to make medical decisions for the other party in the relationship.
Ohio laws also give certain rights to spouses and other family members regarding probating an estate, certain retirement accounts, and other financial assets. With regard to probate, the beneficiaries of an intestate estate (one without a will) are limited to a legal spouse and the decedent’s closest relatives or next-of-kin. No portion of the estate will ever be left to a non-family member, which could include a non-married partner. Further, priority in administrating an intestate estate is given to next-of-kin.
How Estate Planning Can Protect Your Wishes
Fortunately, with proper planning, an individual can name any other individual (including a non-spouse) to make decisions if they are disabled and can name them to serve as fiduciary and even beneficiary in the event of their death. With a health care power of attorney and living will, a non-spouse can be named as an agent and also listed to be contacted before following the advanced directives of a living will. On the financial side, a non-spouse can be named an agent under a durable general power of attorney to conduct virtually any financial or business action on behalf of the principal. And finally, both wills and trusts allow a non-spouse to serve as trustee and/or executor and also as a beneficiary.
Ensuring your wishes are met is of the utmost importance to us. If you would like to discuss your estate plan, don’t hesitate to contact your attorney at Carlile Patchen & Murphy or a Family Wealth & Estate Planning Group member.
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