Eight Estate Planning Implications of Obergefell for Same-Sex Married Couples in South Dakota

In 2015 the United States Supreme Court issued its opinion in Obergefell v. Hodges, finding that same-sex married couples are entitled to equal protection under the law, and that their marriages must be recognized in all fifty states – including South Dakota.

The Supreme Court’s ruling overrides South Dakota’s law that prohibited same-sex marriage and will undoubtedly have a major impact on estate planning opportunities for same-sex spouses in South Dakota. Here are eight implications that Obergefell will have for same-sex married couples in South Dakota:

1.  Healthcare Decisions 

Previously, because South Dakota did not recognize same-sex marriage, one spouse could be left out of the other incapacitated spouse’s healthcare decisions. Now, a same-sex spouse’s decision will have priority under these circumstances. 

2.  Guardianship Decisions

A same-sex spouse will also have the right to participate if guardianship or conservatorship proceedings become necessary.

3.  Federal and State Benefits  

Since 2013, same-sex spouses have received survivorship rights for federal benefits and programs (like Social Security). After Obergefell, spouses now gain access to survivorship rights at the state level, like state pensions or other state benefits.

4.  Intestacy 

If a spouse dies without a legal will or trust (also known as “intestacy”) a same-sex spouse will now have certain spousal inheritance rights. 

5.  Will/Trust Contests

If a will or trust is contested after a spouse’s death, the same-sex partner will now have a say in the court proceedings.

6.  Federal Taxes

From a tax perspective, same-sex couples now have the ability to file their federal taxes jointly as a married couple.

7.  Portability

Same-sex couples can now claim “portability” elections on the death of the first spouse. The “portability” of the federal estate tax exemption means that if the first spouse dies and the value of the estate does not require the use of all of the deceased spouse’s federal exemption from estate taxes, the amount of the exemption that was not used for the deceased spouse’s estate may be transferred to the surviving spouse’s exemption.

8.  Marital Deduction

The marital deduction allows anyone to pass their entire estate to a surviving spouse without any estate tax. 

Brooke Swier Schloss
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Family Law and Estate Planning attorney helping families across South Dakota plan and protect their loved ones