Recent census data shows that over 1 million same-sex couples currently live in the United States with over 700,000 of them being married with many more potentially being uncounted. While the recent federal Respect for Marriage Act offers additional protections for married same-sex couples, same-sex couples, married or not, should review their estate planning documents and applicable state and federal laws to ensure that the couple, and their wishes, are adequately protected. This article explains how the Respect for Marriage Act impacts married same-sex couples in their estate planning, while identifying opportunities for families and advisors to better plan, prepare, and protect for probate, incapacity, and taxes. 

The Respect for Marriage Act

On Dec. 14, 2022, President Joe Biden signed the Respect for Marriage Act, repealing the 1996 Defense of Marriage Act (DOMA) and affording federal protection for marriages between same-sex partners. Previously, DOMA limited the federal definition of marriage to the union of one man and one woman, and permitted states to refuse to recognize lawful marriages between same-sex couples performed in other states. DOMA precluded same-sex couples from federal recognition of their marriages, denying these couples numerous privileges and rights given to their opposite-sex counterparts, including, but not limited to, the marital deduction for federal estate and gift tax purposes and survivorship benefits. DOMA was effectively overturned by the U.S. Supreme Court, first, in part, in United States v. Windsor, 570 U.S. 744 (2013), and then, further, in Obergefell v. Hodges, 576 U.S. 644 (2015). The Respect for Marriage Act codifies that a marriage between two individuals validly entered into in one state must be recognized by any other state (so-called “full faith and credit”), and that only the law of the jurisdiction applicable at the time the marriage was entered into may be considered. This statutory protection of these marriages offers some comfort for same-sex couples, but also requires same-sex couples to review the impact on their estate planning. 

New Jersey