Dobbs v. Jackson Women’s Health Organization: The Case that Overturned Roe v. Wade Could Impact Estate Planning for Same-Sex Couples

 Posted on November 23, 2022 in Estate Planning

What Happened in Dobbs v. Jackson?

On June 24, 2022, the Supreme Court released its decision in Dobbs. This decision overturned the long-standing precedent set by Roe v. Wade that women have a right to have an abortion under the Constitution. The justification used by the majority of the Justices in the Dobbs ruling could have devastating impacts on other previously held constitutional rights, including the rights of same-sex couples. 

Before the Dobbs ruling, the Supreme Court in Roe held that women did have a right to seek an abortion (up to a certain point in the pregnancy) because it was protected by the constitutional right to privacy. This meant that an individual state could not ban women from seeking an abortion nor could a state place any undue obstacles in the way of a woman seeking an abortion. However, by a 5 to 4 vote in Dobbs, the majority held that the U.S. Constitution does not explicitly give women the right to seek an abortion and thus, there is none. Consequently, this decision gave individual states complete power to regulate any aspect of abortion not preempted by federal law. Thus, the Dobbs decision paved a path for the Court to allow states to regulate other constitutional rights that were previously held as constitutional under the right to privacy.  

How Does This Decision Impact Estate Planning for Same-Sex Couples?

 The Dobbs decision impacts far more than just abortion rights because of its justification. Like the right to abortion, the right to same-sex marriage is not expressly stated in the Constitution, but instead was previously interpreted by the Supreme Court to be included under the constitutional right to privacy. Obergefell v. Hodges was the 2015 Supreme Court decision that held all states must recognize a same-sex marriage as a valid marriage because it was constitutionally protected under the right to privacy.

As such, there is much concern that the Supreme Court will use the same justification as they used in the Dobbs decision to overturn Obergefell. This would be leaving the validity of a same-sex marriage to be up to each individual state. As we know, this simply trigger many of the states to ban same-sex marriage, just as they had when they were allowed to do so less than 10 years ago. 

Unfortunately, this is not just a scary hypothetical, it is a real possibility. In his concurring opinion in Dobbs, Justice Clarence Thomas explicitly stated that the Court should revisit other substantive due process rights, including the right to contraception and the right to same-sex marriage (both held as constitutional under the right to privacy). Because of this decision, it is important now more than ever that LGBTQ couples ensure they have done proper estate planning.

What Can Same-Sex Couples Do to Ensure Their Estates Are Protected?

There are options for LGBTQ couples to protect themselves, their families, and their assets, regardless of how the Supreme Court rules concerning same-sex marriage rights in the future. This starts with a thorough estate plan that meets your individual wants and needs as it concerns your family and your estate. 

For example, executing a will or a trust would allow you to control what happens to your property and who would obtain guardianship of any minor children you may have if you pass away or should you become legally incapacitated during life and are unable to express your wishes yourself. 

Further, designating a healthcare power of attorney and a financial power of attorney allows you to control who has access to your financials, such as bank accounts and decide who would be the person to make your medical decisions if you are unable to. 

Having a proper estate plan avoids the possibility that a change in marriage law would prohibit your spouse (or other designated person) from having control over the things that are most important to you. Having the expertise of knowledgeable and experienced estate planning attorney is critical so that you know you are making the best decision for yourself and your family and that it is being done properly, according to the law.

Experienced and Reputable Attorneys in Naperville, Yorkville, and Nearby Areas

Estate planning is strongly recommended for everyone, regardless of marital status. Without a proper plan in place, the process of settling a person’s estate after they die can be emotional, costly, and overwhelming for the loved ones that are tasked with doing so. Planning ahead of time has many benefits. Estate planning helps protect the beneficiaries of your property, reduce the amount of taxes taken by the IRS when transferring assets, and helps to eliminate family disputes that can arise during the distribution of an estate. At Peace of Mind Asset Protection, LLC we have the proper knowledge and experience to assist with the best estate planning option for you. Contact us today at 630-780-1034.