All Family Law, All Around the WorldSM

Wills, Trusts and Estates Planning For Same-Sex Couples in Georgia After Obergefell v. Hodges

On Behalf of | Jul 6, 2015 | Wills, Trusts And Estates

Tonight’s excellent analysis of the impact of same sex marriages in the world of Wills, Trusts and Estates was written by our Wills, Trusts and Estates attorney, Steve Worrall.

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” – Justice Anthony M. Kennedy

On June 26, 2015, the United States Supreme Court issued its opinion in Obergefell v. Hodges, one of several consolidated cases on same-sex marriage rights. The Court ruled 5-4 that same-sex married couples are entitled to equal protection under the laws, and that their marriages must be recognized nationwide.


Jim Obergefell & John Arthur, were longtime partners who wanted to enter into a legal marriage. They were residents of Ohio and Mr. Arthur was terminally ill with ALS. They wanted to have their relationship solemnized before Mr. Arthur’s death. They flew to Maryland, a state where same-sex marriage was legal, and they were married at a Baltimore airport. They returned to Ohio as a married couple.

Soon after, Mr. Arthur died, and the State of Ohio issued a death certificate, but it did not identify Obergefell as his surviving spouse. Mr. Obergefell sued the state to be named as Mr. Arthur’s surviving spouse. In the lawsuit, he argued that Ohio’s state constitutional ban on same-sex marriage – including nonrecognition of marriages solemnized in other states – violated the equal protection clause of the 14th Amendment.

The case was combined with several other same-sex marriage cases to resolve two specific issues under the 14th Amendment:


1. The 14th Amendment requires states to issue marriage licenses to individuals of the same gender.

2. The 14th Amendment requires states to formally recognize same-sex marriages of that state’s residents, when those residents entered into a same-sex marriage in another state where the marriage was legally valid.


State laws, including Georgia’s, which ban same-sex marriage are effectively invalidated. Same-sex spouses will now enjoy all Georgia state tax benefits and other spousal benefits that other couples enjoy. (including marriage, divorce, adoption & child custody, separation agreements & QDROs, marital property, survivorship spousal death benefits, inheritance through intestacy, priority rights in guardianship proceedings, contract rights, etc.)

After Obergefell, same-sex couples in Georgia now have the same spousal rights that other married couples enjoy. Some of these occur independent of proactive planning, like:

  • Adoption or child custody proceedings, even in states that previously did not recognize two persons of the same gender as a child’s;
  • Divorce proceedings, if necessary, now that states must recognize the validity of the marriage wherever it was formalized;
  • Spousal priority in matters concerning an incapacitated spouse’s care, or recognition in the event guardianship or conservatorship proceedings are necessary;
  • Spousal survivorship rights under state pension or other retirement benefits;
  • Spousal inheritance through intestacy (when a spouse dies without a valid will or trust);
  • Spousal identity or priority in the event will or trust proceedings are contested after death;
  • The ability to file taxes jointly as a married couple;
  • Any other spousal contract right where the contract is construed under the laws of a state that did not recognize the marriage.


Just because Georgia must now recognize their marriage doesn’t mean same sex couples in Georgia should not take control of their will and trust planning, and clearly set forth their wishes in enforceable legal documents. All the good reasons to plan apply just now as much to same-sex married couples as they do to opposite-sex couples:

  • Proactively expressing their wishes concerning their medical care during periods of incapacity (through Georgia advance directives for health care);
  • Structuring the distribution of their property, including protective trusts, for the benefit of their surviving spouse and children after death;
  • Establishing trusts to preserve privacy, and to avoid the delay and expense of guardianship or probate proceedings during incapacity and after death;
  • Providing mechanisms that allow flexibility in administering those trusts to account for changes in the law, or changes in beneficiary circumstances after death (through carefully-tailored choice of law, decanting, or trust protector provisions);
  • Providing clarity and discretion to a trustee to make strategic tax decisions through trust administration after death (through various investment powers, and accounting and tax provisions);
  • Providing gifts for family members other than a spouse or child through their estate plans;
  • Making gifts to religious or other charitable organizations through their estates;
  • Allowing orderly operation and transition of businesses or professional practices through incapacity or death.

Obergefell probably will be the last word on same-sex marriage, elevating these relationships to equal status with other marriages. While same-sex married couples in Georgia are now entitled to equal protection under the laws of every state, the usefulness of those laws, without proper estate planning, in ensuring dignity in disability and death, and orderly and structured distribution of property after death is very limited for all couples.

Georgia families should always take control of their planning and leave as little to state law interpretation as possible. That is best done through careful planning with experienced Georgia estate planning attorneys who can wisely guide the family through the process.

Steve Worrall

Steve’s primary office is in Marietta, however he services all clients’ Wills, Trusts and Estates needs in Atlanta, Lawrenceville, Canton, Gainesville and Savannah as well.