By Attorney Keith Stevens
Last year, Judge Timothy S. Black of the Southern District Court of Ohio (the federal trial court) ruled that Ohio must recognize a validly-performed out-of-state same sex marriage and list the name of a deceased man's husband on his death certificate as his spouse. Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013). The holding was specific to that couple and did not apply to Ohio's statutory and constitutional prohibitions on same-sex marriage as a whole.
A few weeks ago, Judge Black went further. Hearing the petitions of four same-sex couples, all legally married in states that allow same-sex marriage, Judge Black not only ruled that the state Bureau of Vital Statistics must list both spouses on the birth certificates of their children, he also found that Ohio's statutory and constitutional prohibitions on same-sex marriage were completely unconstitutional on their face and therefore invalid. Henry v. Himes, Case No. 1:14-cv-129 (S.D. Ohio 2014).
Does this mean that Ohio will start performing same-sex marriages next week? No, and it is important for us to realize that this ruling is limited. The decision repeatedly says that it does not require the state to perform same-sex marriages, simply that it cannot make such marriages illegal and, more specifically, it must recognize validly-performed out of state same-sex marriages.
The impact of the decision is also limited for now. Judge Black stayed broader application of his decision beyond the plaintiffs pending appeal to the appellate court and, possibly, to the Supreme Court of the United States. Ohio's federal districts are part of the Sixth Circuit Court of Appeals, along with Michigan, Tennessee, and Kentucky. All four states in the Sixth Circuit have appeals from lower court decisions requiring recognition of out-of-state same-sex marriages or invalidating state constitutional prohibitions on same-sex marriages pending.
This decision is part of an increasing trend from the Sixth Circuit and beyond, to states such as Virginia, Utah, Texas, Oklahoma, and New Mexico. These states and others have taken the decision by the Supreme Court of the United States in Windsor last year, a decision which required that the federal government recognize legally-performed same-sex marriages, and applied the same arguments and rationales to invalidate state prohibitions on same-sex marriage. More states have similar decisions pending.
If this decision stands, there will be an immediate impact in a variety of state benefits and processes. Estate planners in particular will see changes in their major areas of practice:
Probate courts will be required to give equal treatment to a same-sex spouse as to an opposite-sex spouse, including protections against disinheritance, recognition as legal heir, and access to more streamlined versions of the probate process.
Medicaid will be required to take both spouse's assets into account when determining eligibility for one, which may result in a benefit (the sick spouse would be able to transfer assets to the healthy spouse as part of qualification), or a downside (the healthy spouse's assets will also be considered).
If the Ohio estate tax returns in a similar form as it existed prior to January 1, 2013, this will allow for the transfer of wealth from one spouse to another at the first death without taxation and would open new estate tax planning avenues to the couples.
Beyond the civil rights importance of this decision, if it stands it also will impact estate and tax planning. Same sex couples are urged to reach out to their legal advisors to determine what their next steps should be.