Hey there! If you're in a same-sex relationship, estate planning isn't just about managing assets—it's about protecting your relationship, your future, and the people you love. Since the landmark Obergefell v. Hodges decision in 2015 made same-sex marriage legal nationwide, things have definitely improved, but navigating the current landscape requires awareness of both the protections you have and the challenges that might lie ahead.
The Current Landscape: Rights and Protections
In 2015, the Supreme Court announced that state-level bans on same-sex marriage were unconstitutional. In other words, no matter where in the United States that you live, you have the same rights as any other couple. Fast forward to 2025, and married same-sex couples now enjoy crucial financial and legal benefits like:
- Federal estate tax exemptions for surviving spouses
- The ability to inherit retirement accounts with the same favorable tax treatment
- Property ownership as “tenants by the entirety” (a special form of ownership only available to married couples)
- Social Security survivor benefits
- Healthcare decision-making rights
- The ability to file taxes jointly
The only hiccup is that some counties are still denying licenses to same-sex couples. This means that same-sex couples wishing to marry in those places need to travel to a different part of the state to obtain a license. As a result, same-sex estate planning in certain states may be tricky.
In 2022, Congress passed the Respect for Marriage Act (RFMA), which provides additional security by requiring federal recognition of same-sex marriages and prohibiting states from discriminating against out-of-state marriages. This means if you get married in New York and later move to Texas, Texas must recognize your marriage even if state laws change in the future.
Current Challenges and Concerns
Despite these protections, there are still some considerations specific to same-sex couples that make estate planning particularly important:
Recent Political Developments
With the recent election and initiatives like Project 2025 raising concerns, many same-sex couples are feeling uncertain about the future of their rights. While Project 2025 doesn't explicitly call for ending same-sex marriage, legal experts note it does propose treating same-sex marriages as inferior in certain federal contexts, such as making only “faith-based recipients who reaffirm that marriage is between one man and one woman” eligible for certain federal grants.
Many estate planning attorneys have reported a significant uptick in same-sex couples seeking to strengthen their legal protections in response to these developments. As attorney Scott E. Squillace noted in a recent continuing legal education course focused on 2025 planning considerations, there's “increased fear and concern in the community about loss of rights, particularly through policy proposals outlined in Project 2025” that's driving more comprehensive estate planning efforts.
State-Level Complexities and Recent Legal Developments
While federal law recognizes same-sex marriages, state laws can still create complications for couples, especially when it comes to:
- Different inheritance tax rates in some states
- Parental rights for non-biological parents
- Property rights when moving between states
- Healthcare visitation and decision-making in areas with ongoing resistance
The landmark 2025 Pennsylvania Supreme Court case Glover v. Junior illustrates the evolving legal landscape for LGBTQ+ families. The case centered on Nicole Junior and Chanel Glover, a married same-sex couple who pursued having a child through in vitro fertilization using Glover's eggs and a jointly selected sperm donor. When they separated before the child's birth, Glover challenged Junior's parental rights.
On March 20, 2025, the Pennsylvania Supreme Court affirmed the lower court's ruling recognizing Junior's parental rights based on the couple's clear intent to parent together. This groundbreaking decision officially established “intent-based parentage” as a legal pathway to parenthood in Pennsylvania, particularly important for cases involving assisted reproductive technology. The ruling provides significant protection for non-biological parents in same-sex relationships who actively participate in family planning but may lack genetic connection to their children.
This case demonstrates both the challenges same-sex couples continue to face in establishing legal ties to their children and the encouraging evolution of law to recognize modern family formations. However, it also underscores why comprehensive estate planning remains essential—legal protections for LGBTQ+ families are still developing and can vary significantly from state to state.
Real Stories, Real Solutions: Landmark Cases
The importance of proper estate planning for same-sex couples is powerfully illustrated by landmark legal cases that have shaped LGBTQ+ rights in America.
Edith Windsor's Fight for Recognition
One of the most significant cases in same-sex estate planning history is United States v. Windsor (2013). Edith “Edie” Windsor and Thea Spyer were together for over 40 years before marrying in Canada in 2007. When Spyer died in 2009, Windsor was hit with a $363,053 federal estate tax bill because their marriage wasn't recognized federally under the Defense of Marriage Act (DOMA).
Windsor fought this injustice all the way to the Supreme Court, arguing that DOMA violated the equal protection clause of the Fifth Amendment. The Court agreed in a landmark 5-4 decision, striking down Section 3 of DOMA and requiring the federal government to recognize legally performed same-sex marriages. Windsor received a full refund of the estate taxes she had paid, with interest.
This case dramatically changed estate planning for married same-sex couples, suddenly giving them access to over 1,000 federal benefits previously denied, including Social Security survivor benefits, veterans benefits, and critically, the marital deduction for estate taxes.
Jim Obergefell's Fight for Dignity
The case that ultimately led to nationwide marriage equality also stemmed from estate planning concerns. Jim Obergefell and John Arthur had been together for over 20 years when Arthur was diagnosed with ALS. After the Windsor decision, they decided to marry before Arthur died.
Arthur's illness was so advanced that the couple had to charter a medically-equipped plane to fly from their home in Ohio to Maryland, where same-sex marriage was legal. They were married on the airport tarmac with Arthur's aunt officiating, and then returned to Ohio.
When Arthur died three months later, Ohio refused to list Obergefell as the surviving spouse on the death certificate. Obergefell sued the state, beginning a legal journey that culminated in the landmark 2015 Supreme Court decision Obergefell v. Hodges, which made same-sex marriage legal nationwide.
Interestingly, Obergefell has noted that his fight wasn't primarily about financial benefits—recognition of his marriage would have only entitled him to approximately $255 in Social Security benefits. Instead, he emphasized that “it was all about our dignity and the respect we expect from the state we call home.”
These landmark cases underscore that while the legal landscape has dramatically improved for same-sex couples, having comprehensive estate planning documents remains essential both for practical protections and for ensuring dignity and recognition of relationships.
Working With Professionals on Same-Sex Estate Planning
Same-sex estate planning can be complex. It depends primarily on four key factors: what you own, what you owe, where you live, and what you wish to happen after you pass.
Taking advantage of industry professionals will help immensely. Your estate planning team should include:
- You and your partner
- A financial professional, such as a Certified Financial Planner
- Your accountant
- An estate planning attorney
Ideally, a financial professional should work in unison with both an accountant and an estate planning attorney to offer appropriate strategies.
An accountant is a professional whose business is to be on top of current tax laws, which are ever-changing. He or she can also help you calculate the value of your estate. The estate planning attorney can help you implement certain estate planning tools, such as a will or a trust.
With proper planning and a good team of professionals working for you, this doesn't have to be overwhelming.
Essential Estate Planning Elements for Same-Sex Couples in 2025
1. Comprehensive Wills and Trusts
A will is no longer optional—it's essential. Without one, state intestacy laws determine who inherits your property, and depending on where you live, this might not align with your wishes, especially if you're unmarried.
For 2025, consider a revocable living trust, which:
- Keeps your affairs private (unlike a will, which becomes public record)
- Avoids the probate process (saving time and money)
- Provides protection if you become incapacitated
- Can be especially helpful for couples with properties in multiple states
A trust allows you to transfer ownership of your assets to a legal entity instead of a person. You can name yourself the trustee, the individual who oversees the disbursement of assets, until such time as you are unable to do so. A trust also allows you to designate an alternate trustee, a person who would oversee disbursement of assets in case you become incapacitated and can no longer function as the trustee over your trust.
2. Advanced Healthcare Directives
A healthcare power of attorney allows you to designate the individual whom you want to make the final decisions regarding your healthcare if you are unable to make the decision yourself. A healthcare power of attorney is particularly important for same-sex couples that are unmarried or in domestic partnerships. This document would allow your partner to make these vital end-of-life decisions, rather than a family member or someone else fighting for the decision-making power.
Key documents include:
- Healthcare Power of Attorney: Designates who makes healthcare decisions if you're incapacitated
- Living Will: Outlines your wishes for end-of-life care
- HIPAA Authorization: Grants your partner access to your medical information
Even for married couples, these documents provide an extra layer of protection in case you encounter resistance from healthcare providers or family members in emergency situations.
3. Financial Powers of Attorney
A power of attorney (POA) for property and finances is a document in which you can appoint someone to be your authorized decisions. It allows the agent or attorney-in-fact to manage the business and personal affairs of the principal.
These powers of attorney can include specific powers and/or general powers. For example, if you were to become incapacitated and your POA was durable, your partner could manage your personal affairs, including paying your bills, making gifts, and transferring assets.
A durable power of attorney for finances allows your partner to manage your financial affairs if you become incapacitated. This is particularly important for:
- Paying bills and managing investments
- Handling tax matters
- Making insurance claims
- Managing property
If you fail to have this document and are incapacitated, discriminative laws could surpass your partner and put you under the care of other family members.
4. Real Estate Planning
Married same-sex couples should not encounter any issues with real estate. However, unmarried partners might. Consider the following ideas if you're not married, but want to own a home with your partner.
How you title your home is very important. If you and your partner title your home as “Joint Tenancy with Rights of Survivorship,” the survivor becomes 100 percent owner of the home if one of you dies.
If a home or other asset isn't titled correctly, the effects can be devastating and unintended. Your partner may not end up as the legal owner of the home. It's important to speak with an attorney about how you should title your assets and how a trust can help in order to keep your decisions your own — even after you're gone.
For married same-sex couples in 2025, the ideal form of property ownership is typically “tenants by the entirety,” which offers additional protection against creditors that joint tenancy doesn't provide. This special form of ownership is only available to married couples and wasn't accessible to same-sex couples before marriage equality.
Attorney Katya Sverdlov recommends: “If the property was bought prior to marriage and is owned by only one of the spouses, then it makes sense to redo the deed as soon as possible. The deed should be from one spouse to both and should include the language ‘joint tenancy with rights of survivorship'”
Demonstrating Joint Ownership of Your Home
Couples without a marriage license also need to be aware of potential gift tax issues if they “add” a partner to the title of a home.
If you and your partner own your home together and you both contribute to the carrying costs (including the mortgage), always pay the mortgage with two checks. For estate tax planning purposes, such an action can be very valuable. It will allow a surviving partner to prove his or her portion of ownership in the home, making the estate valuation of the first partner to die more equitable. This may also save costly estate tax dollars.
Another reason to pay the mortgage with two checks is so that partners can be prepared in case they separate. Again, careful record keeping can provide valuable documentation.
Other Options
Here's another idea if you are the sole owner of a home that you share with your partner:
Let's say that, in the event of your death, you'd like your partner to continue living in the home, but you want your child or another heir to eventually own it. One way to do this is with a life estate in favor of your partner. Another way is through a trust that stipulates that your surviving partner can stay in the home for a designated number of years or until his or her death. At the time you stipulate, your heirs will be given ownership of the home.
5. Updated Beneficiary Designations
One often-overlooked aspect of estate planning is keeping beneficiary designations current on:
- Retirement accounts (401(k)s, IRAs)
- Life insurance policies
- Bank accounts
- Investment accounts
These designations typically override your will, so it's crucial to review them regularly—especially for LGBTQ+ couples who may have outdated designations from before marriage equality, or might not have updated beneficiaries after relationship changes.
6. Special Considerations for Parents
For same-sex couples with children, additional planning is essential:
- Second-parent or step-parent adoption: To secure legal parental rights for non-biological parents
- Guardianship designations: Naming who will care for minor children
- Education and healthcare authorizations: Ensuring both parents can make decisions for children
- Trusts for minor children: To manage assets for their benefit
Recent legal cases like Glover v. Junior highlight that parental rights can still be contested for same-sex couples, making formal adoption proceedings and clear estate planning particularly important.
Tax Considerations for 2025
There are some important tax updates for 2025 that affect all couples, including same-sex couples:
- The federal estate tax exemption has increased to $13.99 million per individual ($27.98 million for married couples)
- The annual gift tax exclusion has increased to $19,000 per person ($38,000 for married couples)
- However, these elevated exemptions are scheduled to sunset at the end of 2025, potentially returning to approximately $7 million per person in 2026
This potential reduction makes 2025 a strategic year for estate planning and potentially transferring assets while exemptions remain high.
California-Specific Update for 2025
For those in California, a new law effective April 1, 2025, simplifies the transfer of primary residences valued up to $750,000 to heirs without probate or a formal estate plan. While this is helpful, estate planning experts still recommend creating a comprehensive plan, especially for same-sex couples who may face additional challenges.
Would a Trust Be Useful?
Another reason to consider a trust is that it gives you control over how and when your beneficiaries receive your assets. Some people think of a trust as a document. I would like you to think of it as a container that holds money and other assets for your beneficiaries. You decide what you're going to put into the trust, who gets its contents, and how it will be distributed.
You should draft a trust with an attorney who has experience dealing with estate planning and trusts. There can be gift and estate tax consequences to the various types of trusts used in estate planning.
Plus, not all trusts provide estate tax benefits. A revocable trust, for example, doesn't provide any such benefits. However, a revocable trust does avoid probate expenses. An estate planning attorney can work with you to decide if a trust is an appropriate tool for your situation.
What to Include in Your Estate
People sometimes assume estate planning is only for the wealthy. However, the word “estate” simply refers to whatever you own, whether that's a mansion worth millions or just your grandmother's antique tea set. Everything you own is in your taxable estate, including:
- Property in your name
- Your interest in joint property
- Life insurance policies
- IRAs and other retirement plans
It's also important to consider your final expenses when planning with your advisors. They can help reduce the size of your estate before assets pass to your beneficiaries (the people to whom you will leave your money). These expenses can include:
- Any outstanding debts
- Funeral bills
- Medical bills
- Probate expenses, including lawyer and executor fees
How to Distribute Property After Death
There are three ways that property can pass at your death:
1. Your Will
Property that you own in your own name does not automatically “know where to go” when you die. A proper will controls how and to whom this property transfers following your passing.
If you don't have a will, certain state laws will dictate how this type of property will transfer.
Your interest in property that you own with someone as a “tenancy in common” also transfers according to the provisions in your will.
2. A Contract
A contract means that the property involves some sort of legal provision where you have a direct beneficiary to receive your wealth following your death. This is usually the case for any life insurance policies, annuities, or retirement plans. Your will has no control over the distribution of this type of property. That said, most life insurance policies allow you to change the beneficiary should you wish the death benefit go to a dependent rather than your spouse (or vice versa).
3. Operation of Law
This means that the piece of property, such as a house or joint bank account, will automatically pass to a survivor. Do keep in mind that some laws vary by state.
It's important to know not only what you have, but also how you own it. That way, you can understand how it will pass at your death.
You should periodically review any ownership documents you may have because your wishes may change after you create these forms.
Final Thoughts
Estate planning for same-sex couples in 2025 is about creating multiple layers of protection. While marriage equality has provided significant legal recognition, having robust, personalized estate planning documents offers security regardless of how the legal landscape might shift.
The key is being proactive. Don't wait for a crisis or legal changes to put these protections in place. With the right planning, you can ensure your relationship, your family, and your future are protected on your terms.
Remember, estate planning isn't just for the wealthy—it's for everyone who wants to protect the people they love and the life they've built together.
This article was updated by Team CentSai in May 2025.
