The Executive Branch and Justice Department’s decision to no longer defend the constitutionality of the federal law banning recognition of same-sex marriages could have a sweeping impact beginning with the benefits that employers offer to their employees as well as upon trusts and estates.
The federal government’s actions could prompt more progressive states and local governments to amend their current laws to recognize same-sex marriages. As a result, employers’ benefits packages will need to account for same-sex partners as beneficiaries to 401(k) plans, insurance benefits, and next-of-kin status. Likewise, in the estate planning realm, a same-sex partner will likely be granted the same rights and privileges of a surviving spouse; which, until now, has been reserved to heterosexual partners. Which means the validity of someone’s wishes concerning who gets what and who is involved in end of life decisions will be subject to less scrutiny when that person chooses a same-sex partner.
States are still free to craft any legislative approach they wish to marriage. However, the Executive Branch’s decision could help bolster the legal arguments of those seeking to uphold same-sex marriage as a civil right.
If you have questions about how this might affect your company or estate plan, consult your attorney.