In United States v. Windsor, the Supreme Court took a historic step towards providing equality to all, regardless of sexual orientation. While a significant victory for same-sex couples across the nation, it must also be understood that this decision is somewhat limited in scope. As the Miami Herald noted, this Supreme Court “ruling leaves Florida same-sex couples in limbo,” due to the fact that same-sex marriages are still not permitted under the Florida Constitution. The Court’s decision affirmed the Second Circuit Court of Appeals’ ruling that Section Three of The Defense of Marriage Act (“DOMA”), which stated “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife,” was unconstitutional. While a positive step for same-sex couple seeking equal treatment, this decision still leaves same-sex couples at the mercy of their state’s legislature. In Florida, for example, Governor “Rick Scott made clear  that he intends to enforce the same-sex marriage ban that voters approved in 2008.” . Additionally, the Supreme Court did not rule all of DOMA unconstitutional, meaning that, pursuant to Section Two of DOMA, states still do not have to respect same-sex marriages consummated in other states.
There are many questions left in the wake of the Supreme Court’s ruling, but there are a couple of issues that are clear. First, the federal government cannot pass a law that defines marriage as only being between a man and a woman. Thus, States are free to pass their own laws, though they are not compelled to do so, that authorize same-sex marriage. Second, same-sex individuals who are married will be afforded the benefits of over one thousand federal statutes to which they were previously denied access because the applicability of those statutes is predicated upon marriage. Those benefits include government healthcare benefits, the Bankruptcy Code’s protections for domestic-support obligations, the ability to be buried in veterans’ cemeteries, and a plethora of other benefits. Third, states still have the ability to deny same-sex couples the right to marry, which is evident from Justice Kennedy’s second-to-last remark, that the “opinion and its holding are confined to those lawful marriages.” Thus, in order to have a “lawful marriage,” same-sex couples are still at the mercy of their individual state legislation to designate their unions as “lawful” so they may benefit from the Windsor decision.
As state representative Joe Saunders of Orlando stated, “[w]hile the winds are in the sails of gay and lesbian families here, it’s still going to be a patchwork and a space of limbo until we figure out exactly what happens in states like Florida.” In fact, one commentator went so far as to say that the Court’s ruling “has no impact whatsoever in Florida.” While same-sex couples living in Florida would still, presumably, be able to take advantage of the federal benefits provided to married couples by getting married in a state that allows same-sex marriage, they are not, however, able to benefit under Florida laws. One source of benefits that is the creature of state statue is the Florida Probate Code. This statute is particularly important, as there are many default provisions, as well as inviolable entitlements to estate assets, that are predicated upon being a “surviving spouse.” The Court’s decision in Windsor does nothing to afford Florida same-sex couples the benefits of Florida’s Probate Code. For example, same-sex couples do not qualify as “spouses” under the Florida Statute of Intestacy, the statute that determines how property is distributed when a deceased dies without a valid will. In light of this, having a comprehensive estate plan is arguably even more important for same-sex couples than heterosexual couples, with regard to ensuring that their property is devised to their loved ones, as heterosexual couples can take advantage of the aforementioned statutory provisions designed to reflect the probable intent of a deceased without an estate plan. Same-sex couples, however, cannot rely on the Florida Statute of Intestacy to ensure that a surviving partner inherits upon the death of their deceased partner. A decedent in a same-sex relationship may have all of his property pass to his family members, even if the decedent was not close with his or her family and had been with his or her partner for decades.
While the importance of Windsor should not be discounted, its limitations must also be recognized. Affording same-sex couples the same protections as heterosexual couples certainly has momentum behind it, and it would not be out of the realm of possibility for a future Supreme Court case to put heterosexual and same-sex couples on equal footing. However, until that happens, a comprehensive estate plan created with the assistance of an experienced and trusted advisor is vital to same-sex individuals ensuring that their families are provided for in accordance with their wishes after they have passed away. Heterosexual couples will also be well advised to follow this advice, lest their property be distributed in accordance with the Florida legislature’s best guess as to their wishes via the Florida Statute of Intestacy.
If you or someone you know wishes to create a comprehensive estate plan, so that their loved ones will be adequately provided for upon their death in accordance with their wishes, please do not hesitate to contact the experienced estate planning team at Chepenik Trushin LLP.