By Associate Attorney Danielle Nodar
In 2015, the Supreme Court's decision in Obergefell v. Hodges recognized the constitutional right to marriage extended to unions between same-sex couples. This entitled married same-sex couples to the same benefits and protections under the law as heterosexual couples. However, the Supreme Court’s recent decision overturning Roe v. Wade included a concurring opinion which hinted at the possibility that the Supreme Court may revisit the decision in Obergefell. The threat to overturn the right to same-sex marriage has sweeping consequences in areas relating to healthcare, financial decision-making, and inheritance.
The below information also applies to men and women who are in committed relationships but choose not to marry. North Carolina does not recognize common law marriage.
A person can appoint a Healthcare Power of Attorney designating an agent to receive medical information and make medical decisions on their behalf if the person becomes incapacitated. Without a Healthcare Power of Attorney appointing your preferred agent, North Carolina statutes dictate who will serve as your agent based on their degree of kinship. This hierarchy allows for most spouses to serve as agent for each other, but unmarried adults without the document must rely on a majority of their available parents and adult children to make such decisions jointly. However, if you have a Healthcare Power of Attorney naming your partner as your agent, then the document controls, regardless of whether the Supreme Court overturns the protections of same-sex marriage.
Another area of concern is who will inherit assets after death. In North Carolina, if a person dies without a Last Will and Testament, the state’s intestacy laws govern how probate property (all of the assets that a person owns in their individual name and assets that do not pass via beneficiary designations) are distributed at death. A spouse is given automatic rights and is entitled to at least a percentage of your estate. Obviously, if you are not legally married in the eyes of the law, your partner has no automatic rights, so a will is crucial to have to prevent assets from being distributed to people with whom you do not have a close relationship or to family that does not need your assets. A Last Will and Testament disposing of property will not be impacted should same-sex marriage be overturned. For more information about how property is distributed in North Carolina if you do not have a will, please see our previous blog: What Happens If You Die Without A Will in NC?
Finally, a comprehensive estate plan will allow you to provide for your spouse or partner with non-probate assets not commonly governed by the intestate succession laws, such as life insurance, retirement accounts, jointly owned property with rights of survivorship, securities with named beneficiaries, and Pay on Death or Transfer on Death accounts. By making sure that your partner is named as the beneficiary on these accounts, they will automatically be distributed to the named beneficiary regardless of marital status.
While we cannot anticipate how laws may change in the future, we can assist you with making sure you and your loved ones are protected and provided for through your estate plan. Please call Jesson & Rains for help in crafting an estate plan that works for your family.
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