20 Jul 10 Same-Sex Marital Rights That Could Be Lost After Scotus Roe Ruling
Although the recent ruling by the Supreme Court of the US (“SCOTUS”) that there was no constitutional right to an abortion (and the case only dealt with abortion), Justice Clarence Thomas indicated in his decision that the constitutionality of same-sex marriage should also be reconsidered based on how rights got expanded by prior SCOTUS rulings. Although no such re-consideration is pending before the Supreme Court, the following are just a few of the same-sex rights that could be lost if same-sex marriages would be declared illegal:
- Health insurance – Often the health insurance coverage through an employer can be extended to a spouse (who might be unable otherwise be covered or the cost would be prohibitive) through employment.
- Income taxes – Sometimes income taxes are less for a married couple if they file jointly.
- Estate taxes – If married, there is an unlimited marital deduction (no estate taxes on the first spouse to die) to the surviving spouse. Additionally, there can be tax planning to reduce estate taxes or the surviving spouse can elect to use the deceased spouse’s unused exemption to reduce or eliminate estate tax upon the death of the remaining spouse.
- Retirement account rollover – A surviving spouse often elects to have a spousal rollover to defer income taxes over his or her life expectancy. If same-sex marriages are no longer recognized, then the beneficiary partner would likely be required to withdraw from the deceased partner’s retirement account within 10 years following the year of that deceased partner’s death.
- Social Security – Generally, if a deceased spouse is receiving Social Security income which is greater than the surviving spouse, then the surviving spouse would be entitled to an amount equal to what the deceased spouse received (but would not get the total of both incomes).
- Medicaid Spousal Impoverishment – If one spouse needs long-term care (i.e. nursing home care where the government helps pay for the costs), frequently the well spouse can keep hundreds of thousands of dollars or do other planning instead of “spending down” to $2,000 of countable resources if the applicant is single. There is also no transfer penalty between spouses. There is a transfer penalty if assets are transferred to a partner or anyone else who doesn’t fit under the limited exceptions if made within 5 years prior to the Medicaid application.
- Medicaid Estate Recovery protection – Under Texas law, a surviving spouse is an exception to a successful claim for Medicaid estate recovery against the homestead and other non-countable resources of the deceased spouse for the benefits the government paid on behalf of the deceased spouse for long-term care, drugs, etc.
- Surviving Spouse’s Right to Live in Homestead – Under the Texas constitution, a surviving spouse has a right to live in the homestead after their spouse dies (provided they do not abandon the home and they pay the taxes, etc.). This right supersedes a will, trust or transfer on death deed – even if the homestead is separate property.
- Allowance of Surviving Spouse in Lieu of Exempt Property – In addition to the homestead, certain personal property could be exempt and set aside. Under the Texas Estates Code, if there is no homestead or other certain personal property of the decedent that is not exempt and that could be set aside, the surviving spouse may request the court make a reasonable allowance up to $45,000. The allowance in lieu of homestead may not exceed $45,000. The allowance in lieu of other exempt property may not exceed $30,000 excluding a family allowance for support of the surviving spouse and minor children for one year.
- Medical decisions – Even is you do not have a medical power of attorney and you become incapacitated, a spouse is first in the priority list to act as a surrogate under Texas law. Adult children, parents and sometimes the nearest living relative or a member of the clergy would have priority over a significant other.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.