Same-Sex Marriage is Now Legal in NC - Should You Update Your Estate Planning Documents?
Same sex marriage became legal in North Carolina on October 10, 2014. Registry of Deeds offices in Western North Carolina began issuing marriage licenses to same sex couples on October 13, 2014, after U.S. District Court Judge Max O. Cogburn Jr.’s ruling that “North Carolina's laws prohibiting same-sex marriage are unconstitutional as a matter of law." Needless to say this is a drastic turn around from the 2011 passage of Amendment 1, the constitutional amendment that banned same-sex marriage in North Carolina.
Both the state of North Carolina and the United States Federal Government now recognize the legality of same-sex marriages that are performed in our state. Same-sex marriages that were performed out of state while the ban was still in effect are also now also legally recognized by North Carolina. This means that all married couples in North Carolina are now subject to the same laws concerning marriage. If the couple is not legally married then nothing really has changed about their legal status in NC.
Many same-sex couples that are now legally married have asked how this change in status affects their estate planning documents. Before same sex marriage was legalized in our state, couples relied on wills, advance directives for healthcare, durable powers of attorney, and other documents to provide them with basic legal protections. Now that same-sex couples can officially wed, they should be entitled to all the legal benefits that come with marriage. However, estate planning is important for all married couples and may still be even more critical for same sex couples to have those documents in place.
A lot of legal issues surrounding same-sex marriage have not been tested in NC. It is unknown how they will play out in the future. North Carolina Governor Pat McCrory issued a statement after the legalization of gay marriage that read, “The administration is moving forward with the execution of the court’s ruling and will continue to do so unless otherwise notified by the courts. Each agency will work through the implications of the court’s ruling regarding its operations.”
Most same-sex couples that have had estate-planning documents drafted have done so in order to ensure a heightened level of protection. As the North Carolina government and courts “work through the implications of the court ruling” this heightened level of protection might still be beneficial for same sex couples who are legally married. I do not think it is necessary to have these documents re-drafted if they were already in place. However you should consult with an attorney about your particular situation. And it is a good rule of thumb for all couples to have their estate planning documents reviewed any time there is a change in marital status.
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