How LGBTQ couples can plan ahead in case marriage equality is overturned

In August, news broke that Kim Davis — the Kentucky county clerk who refused to issue marriage licenses to same-sex couples — asked the justices on the Supreme Court to overturn their 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide.

Former Secretary of State Hillary Clinton was quick to sound the alarm, urging unmarried queer couples to “consider getting married” before the high court unravels the rights won in the landmark decision. 

“The Supreme Court will hear a case about gay marriage,” she said on “Raging Moderates,” a podcast hosted by Fox News pundit Jessica Tarlov. “My prediction is they will do to gay marriage what they did to abortion. They will send it back to the states.” 

Legal experts note that the recent challenge brought by Davis is in its early stages. The next step would be for the court to choose to review the case among a pool of thousands, a stage at which some 97% of cases are denied, per the Supreme Court code of conduct.  

“Whether the court will grant review really boils down to whether there are four votes to take up the question,” Amy Howe writes for SCOTUSblog. “Moreover, even if there are four justices who might be inclined to do so, they won’t want to grant review unless they are confident that there is a fifth vote to overturn Obergefell.”

In short, “don’t freak out just yet,” says Steve Branton, a certified financial planner who specializes in planning for LGBTQ+ and nontraditional families.

“It’s still a good time for any couple, whether they’re unmarried, domestic partnered, civil union, married, to take a look at their their financial assets, their estate plan, their legal plan, and, if they have children, their custody plan,” he says, adding that now’s a great time to “make sure everything is in order.”

Even if Obergefell is overturned, Branton says, queer married couples could still retain some protections under the Respect for Marriage Act. The bipartisan law passed in 2022 requires all states and the federal government to recognize same-sex marriages performed in states where such unions are legal.

Should the Supreme Court reverse course on Obergefell and send marriage equality back to the states, already married couples would retain their rights, as would, theoretically, any couple who got married in a state without a constitutional or legislative ban on same-sex marriage.

“Somebody from North Carolina could go across the state line … and get married and come back, and that marriage should be honored in North Carolina,” says Branton. “But the question is, what about the state-level benefits? I don’t think anybody knows that just yet.”

That ambiguity is why Clinton and others have urged queer couples to tie the knot ASAP. “I don’t think they’ll undo existing marriages, but I fear they will undo the national right,” she said.

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But marriage is a major financial commitment, Branton says — one that shouldn’t be jumped into without careful consideration.

“I wouldn’t say go out and get married right now, because that’s really a complicated decision to make from a financial and legal perspective,” he says.

Instead of telling them to rush to the altar, Branton is urging his LGBTQ+ clients to take a wait and see approach while also reviewing their financial documents to make sure everything is airtight. Here’s what he says is worth looking at.

Beneficiary designations

Certain financial instruments, such as life insurance policies and investing and bank accounts, allow you to designate a beneficiary to receive your assets in the event of your death. It’s important to keep your beneficiaries up to date, because failing to do so could mean that your money ends up in the wrong hands. Fail to name anyone, and your loved ones could end up duking it out in court.

“People die out of the blue, and you [may not] want your accounts going to somebody like a sibling … when you have a committed life partner,” Branton says.

Estate planning documents

In the same vein, having a suite of estate planning documents in place means that you get to decide what happens in the case of your death or incapacitation — not the state. It’s a particularly important legal protection to have should things shift in terms of how the government handles non-traditional families, says Branton.

A simple will designates how you want your assets to be distributed in the event of your death. Documents like powers of attorney and advanced directives (which may go by different names in different states) lay out your wishes and allow you to name a decision-maker should you become incapacitated.

Family legal documents

Queer couples with children face a more complex legal situation than cisgendered, heterosexual couples, Branton says — and things could get even more complicated with same-sex marriage under threat.

“It’s really important to make sure you have the right legal documents,” he says.

This may include a so-called second-parent adoption, Branton says, which allows the non-biological parent in an LGBTQ+ couple to establish full-parental rights alongside their partner.

A popular option pre-Obergefell, these documents ensure that queer parents retain their rights in the case of death or divorce and regardless of location. Securing one typically costs around $2,000 to $3,000, depending on home study expenses and legal fees, according to the Human Rights Campaign. Consult an attorney to see if this option makes sense for you and your family.

Overall, don’t panic, says Branton — but be proactive.

“We’re not saying you should be threatened today about this, but you should still get your house in order, because we live in a country where politically, things can change quickly,” he says.

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