The legal and political landscape is always shifting, and I know many same-sex couples in San Jose are wondering what would happen if federal protections for their marriages were rolled back. You’ve worked hard to build a life together, and the last thing you need is uncertainty about whether your marriage, your assets, or your rights will be recognized in the future. While no one can predict exactly what will happen, proper estate planning ensures that you and your loved ones have security, no matter what changes may come.
Understanding Current Protections and Potential Changes
Right now, same-sex marriage is recognized in all 50 states under federal law, protected by the Supreme Court’s Obergefell decision and the Respect for Marriage Act. If you were married in California, your marriage remains valid under state law, even if federal protections shift.
There are valid concerns that Obergefell could be overturned, particularly given the shifting composition of the Supreme Court and its willingness to revisit past precedents. However, even if Obergefell were to be overturned, it is unlikely that previously valid marriages would be nullified. Historically, when marriage rights have changed—such as with interracial marriage or common-law marriage—existing legal marriages have remained intact. Additionally, the Respect for Marriage Act ensures that marriages performed in states where same-sex marriage is legal will continue to be recognized at the federal level and in states where marriage equality is not protected.
Fortunately, in San Jose and throughout California, state laws explicitly safeguard same-sex marriage and provide strong legal protections for LGBTQ+ families. In November 2024, California voters overwhelmingly passed Proposition 3, which removed outdated language banning same-sex marriage from the state constitution, reinforcing California’s commitment to marriage equality. This means that, regardless of what happens at the federal level, same-sex marriages will remain fully recognized and protected under state law.
California law ensures that same-sex spouses have the same inheritance rights, parental rights, and healthcare decision-making authority as opposite-sex couples. However, that doesn’t mean estate planning isn’t essential—especially if you own property, have children, or want to protect your assets from potential legal battles.
However, federal policy shifts could affect crucial benefits far beyond basic marriage recognition. You might lose access to:
- The unlimited marital deduction for federal estate taxes, which currently allows married couples to transfer unlimited assets to each other without tax implications
- Spousal Social Security benefits, including survivor benefits that can provide crucial financial support
- Federal retirement plan options, like tax-free rollovers for spouses and inherited IRA benefits
- Certain immigration rights for non-citizen spouses, including green card eligibility and expedited citizenship
- Federal employee benefits for government workers’ spouses
- Military benefits for service members’ spouses
Additionally, if you move out of California to a state that doesn’t have strong LGBTQ+ protections, you could face complications with healthcare decisions, property rights, and parental rights. But you don’t have to live with this uncertainty—estate planning allows you to take control now, so you and your family are protected no matter what happens.
Essential Components of Your Life & Legacy Plan
Before marriage equality became the law of the land, same-sex couples had to rely on estate planning to secure their rights. And even today, that’s still the best way to ensure your wishes are honored. When you work with me, we’ll create a Life & Legacy Plan that protects you and your loved ones in any legal or political climate. Here’s what that plan may include:
Trust Planning
A trust allows you to decide exactly how your assets will be distributed, rather than relying on marriage laws that could change. A trust also ensures that, if something happens to you, your assets will be managed by the person you choose—not the state. If you and your spouse own real estate in San Jose, have business interests, or want to provide for children, a trust gives you full control over how those assets are handled.
A trust can also include specific provisions for:
- Real estate holdings and how they should be managed
- Business interests and succession planning
- Investment accounts and their distribution
- Personal property with sentimental value
- Digital assets and cryptocurrencies
Healthcare Directive
Even though California recognizes same-sex marriage, hospitals may not always respect your spouse’s decision-making authority without a clear legal directive. A healthcare directive ensures that your spouse (or whomever you choose) has the legal authority to make those decisions and ensures your medical wishes are followed—even if a hospital or family member disagrees.
Power of Attorney
If you become incapacitated, a power of attorney allows your spouse (or another trusted person) to manage your finances, pay bills, and make property decisions on your behalf. This is critical in the event of unexpected medical emergencies, particularly if you have significant financial assets in the Bay Area.
Beneficiary Designations
Assets like retirement accounts and life insurance policies pass directly to the named beneficiary. It’s important to regularly review and update these designations to ensure your assets go to the right person. When we create your Life & Legacy Plan, I’ll help you avoid common mistakes and ensure all your accounts align with your estate planning goals.
Cohabitation Agreement
If you and your partner are not married, a cohabitation agreement can help define your financial responsibilities and property rights. In California, where community property laws only apply to married couples, an unmarried partner does not have automatic rights to shared assets or financial support in the event of a separation or death. A cohabitation agreement can clarify how property and finances will be handled, protecting both partners from potential disputes. We’ll discuss whether this type of agreement makes sense for your situation and how it can complement your overall estate plan. If marriage laws change, a legal agreement between you and your spouse can define your financial responsibilities and property rights, adding an extra layer of protection. We’ll discuss whether this type of agreement makes sense for your situation.
Each of these strategies is designed to protect you, your spouse, and your family—so you don’t have to worry about what happens if the laws change. But the key is to put these protections in place now, before it’s too late.
Why You Shouldn’t Wait to Plan
I know it’s easy to think, I’ll deal with this later. But the reality is that waiting puts you and your loved ones at unnecessary risk. If laws change suddenly, you could lose valuable legal protections that you could have secured with a solid estate plan.
Even if marriage protections remain intact, estate planning offers benefits beyond legal recognition. A Life & Legacy Plan can help you:
- Maintain privacy about your estate
- Protect assets from creditors
- Create legacy plans for future generations
- Support charitable causes you value
- Ensure your wishes are clearly documented
Estate planning isn’t just about paperwork—it’s about ensuring that your love, your commitment, and your legacy are protected. Laws may shift, but with the right plan in place, you can have peace of mind knowing that no matter what happens, your rights and your family are secure.
Take Action to Protect Your Family
Don’t wait until legal changes force you into a difficult situation. I focus on helping same-sex couples in San Jose and throughout the South Bay create comprehensive Life & Legacy Plans that provide long-term protection and peace of mind. When you work with me, you’ll get personalized guidance and legal solutions tailored to your unique needs.
Let’s make sure your family is protected—now and always. Schedule a complimentary 15-minute consultation today