Questions remain in post- 'Obergefell' era

OCBA hosts event looking at impacts of historic opinion

By Lee Dryden
BridgeTower Media Newswires

DETROIT - While the landmark U.S. Supreme Court decision Obergefell v. Hodges settled the issue of same-sex marriage, legal questions are still being sorted out a year later.

Practitioners received advice on how the historic opinion impacts family law, estate planning and employee benefits during a Sept. 27 Oakland County Bar Association event titled "Issue Spotting in a Post-Obergefell World."

Speakers included Eric W. Gregory of Dickinson Wright PLLC, Shirley A. Kaigler of Jaffe Raitt Heuer & Weiss PC and Richard A. Roane of Warner Norcross & Judd LLP.

They shared advice, pitfalls and background to help lawyers identify problems and guide their same-sex clients through the litany of legal ramifications of marriage.

The program was presented by the OCBA's Probate Estates and Trusts, Family Court and Employee Benefits committees.

Family law

Roane spoke of the impact on families from the legalization of same-sex marriage.

"It has changed the lives of hundreds of thousands of families, children of these couples. It's really made a big impact and a big difference in our world," he said. "I say there is no more same-sex marriage. Marriage is marriage - period."

The Obergefell decision provides a clearer legal path when a same-sex couple ends their relationship.

Previously, a divorce couldn't be filed no matter how long a same-sex couple had been together and how much they had accumulated, said Roane, who worked to mediate agreements.

"I've been dealing with these cases for 28 years. But, until last year, there was no legal structure to address these," he said. "These couples never had access to the court and they didn't have access to justice. With Obergefell, at least there's some opportunity for access to justice."

Same-sex married couples who divorce will deal with the same issues as opposite-sex married couples such as child support, parenting schedules and health insurance, Roane said.

"Everything that happens typically in divorce action that's related to children is going to happen in these same-sex couples when they break up," he said.

A unique challenge in Michigan is custody battles among same-sex couples who were not married - because it was not legal then - when a child was born.

Roane cited an example of a couple together for 15 years with a 15-year-old child with a relationship with both parents. The non-biological parent gets shut out byMichigan case law if a break-up occurs.

"If there's not marriage, then there's not standing for the non-biological parent to come to court and seek any relief," he said. "That is really a disaster for families.

"Eventually, Michigan is going to have to address and change this because it really becomes an equal protection issue."

He predicted equitable parent cases will eventually end up in the U.S. Supreme Court.

In the meantime, he urged lawyers to help parties reach private parenting agreements.

"Try to work something out - try to mediate," he said.

Roane said practitioners should keep track of issues faced by their clients - and related legislation - so they can "respond and react" to what Obergefell brings.

"I don't have all the answers," he said. "I try to spot issues. I try to research and look at these issues and read what's coming down every single day."

Estate planning

After Obergefell, same-sex couples have many issues to consider when estate planning as they now have the rights that married couples have traditionally been granted.

"I have dealt with same-sex issues for a number of years when clients came in who were committed partners but there were no means for them to own property or transition property or serve in capacity for each other easily," Kaigler said. "It wasn't a right under the law.

"The decision brings everyone in who has committed to marriage."

Like any couple, those entering a same-sex marriage need to consider if they want all the benefits to which they are now entitled, Kaigler said, as one party may not want all assets going to a surviving spouse if they are blending families.

"It's important in pointing out what things were gained to also recognize that there are also some issues now for those who are getting married that they should be aware of because they may want to make a different disposition plan than what is statutorily allowed under the law," she said. "They have to do the planning just as anyone else in deciding what would be best for that relationship."

Same-sex spouses have priority - unless estate planning documents dictate otherwise - to serve as a personal representative, guardian or conservator for their spouse if there is no power-of-attorney in place, Kaigler said.

Previously, one party in a couple not legally married could be barred from the other's hospital room or access to funds needed to pay bills. Now, they are able to make funeral and burial arrangements and either spouse can purchase insurance on the other's life, Kaigler said.

There also is a major change for couples with no estate plan.

"In the past, they would not have inherited anything as a domestic partner, but now, if the planning hasn't been done, there is a default provision that helps protect or ensure that spouse would receive some assets from the estate before relatives or others are able to receive any of those benefits," Kaigler said.

Some issues remain unresolved, Kaigler said, as there are references in codes and statutes to "husband and wife."

"There is going to be a major revamping or review of our laws to make sure everything is brought on board and to deal with some potential challenges in applying the law equitably," she said.

Employee benefits

Gregory brought up the key 2013 U.S. Supreme Court decision, United States v. Windsor, which struck down the Defense of Marriage Act, which defined marriage for federal purposes as involving opposite-sex couples.

The decision allowed legally married same-sex couples to be treated under federal law, tax law and the Employee Retirement Income Security Act of 1974 (ERISA) as spouses.

"As someone that represents a lot of employers who provide domestic partner benefits or welfare plans, when the Windsor ruling came down, it was a big deal because it meant they could finally allow people to enroll as a same-sex spouse," Gregory said. "They didn't have to treat people who were actually spouses like they were domestic partners."

Gregory said retroactivity is a "tricky issue" with retirement plans for those married prior to the court decisions.

Some employers retroactively amended their plans and, in 2013, the Internal Revenue Service allowed retroactive enrollment in benefits and a refund on taxes paid prior to Windsor.

As Michigan's constitution still prohibited same-sex marriage after Windsor, there could be a retroactive lawsuit over the denial of benefits to same-sex spouses.

A post-Obergefell development is that employers are "chiseling back" on domestic partner coverage, Gregory said.

"They're basically taking the position that 'you can get married now and we can provide those benefits, but if you don't want to get married, then we're not going to provide you those benefits' so it's sort of having an unintended consequence that way," he said.

Obergefell helped clarify treatment of same-sex spouses for employers and employees regarding benefits, Gregory said. There are still questions about the retroactive effect and more clarity is expected in a year or two, he said.

Published: Thu, Oct 13, 2016

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