Same Sex Estate Planning

In San Diego, many same sex couples [as well as opposite sex couples] are consenting to a marriage ceremony in the San Diego Court House and by other licensed officials in the State of California. For opposite sex couples, this has been occurring daily for many years. For same sex couples, this has only been occurring in San Diego since June of 2008. There have always been limitations on who can marry [legal age to consent and blood relatives are among the most common] and, since 1948 in San Diego, California, inter racial marriage has been lawful and permitted inter racial spouses. With the recent California Supreme Court decision in the In Re Marriage Cases, all of the same law which applies to opposite sex couples now apply to same sex couples regarding marriage. The California Supreme Court has issued a Writ of Mandamus to California State officials to comply with the marriage statutes consistent with the recent ruling and our firm is complying by making all of the same estate planning strategies and techniques that we implement for opposite sex spouses to be implemented in exactly the identical manner for same sex spouses.

In San Diego, many opposite sex spouses take advantage of the estate planning laws and statutes to avoid probate fees and costs with a revocable living trust. While no one knows what the future will be of the California Supreme Court decision, it is clear that all should be treated consistently with the reasoning in the decision and this is that California State Statutes which define marriage in California as only between a man and a woman are unconstitutional and must be stricken from the California Family Law Statutes Section 300 and 308.5. For a more focused discussion of the recent California Supreme Court case and marriage, please view our article on our family law website of and already opponents are preparing to renew their opposition as they did in the Defense Of Marriage Act enacted under Proposition 22. The opponents plan to place an initiative on the ballot in November of 2008 to make same sex marriage unconstitutional as it has been in the past. Given that the California Supreme Court did void marriages in the Lockyear case which had been performed legally in San Francisco, the state of the law clearly can be said to be in flux however the reasoning in the most recent case under discussion is consistent with not limiting marriage or marriage contracts to members of the opposite sex. A different issue will arise in federal law since married persons in California will be filing "married filing jointly" with same sex spouses and the federal law is different than the state law. The federal law has supremacy over the state law under our system of justice. This issue may be decided by the United States Tax Court or by the United States Supreme Court.

In San Diego, if you own a residence or have assets over $100,000 [and this does not include debt which is not considered for purposes of the gross value of the estate], you need a revocable living trust to avoid probate fees and costs and to try and have privacy in the distribution of your estate. At our firm, we do not discriminate and perform legal work in accordance with the laws of the State of California. As attorneys, we are also Officers of the Court. We would be pleased to offer all of our estate planning services to same sex spouses in addition to opposite sex spouses. We cannot guarantee that the marriages performed will not be ruled void by another Court, as the California Supreme Court has done once already in these series of cases, or that they will be recognized by the Federal Government. We cannot guarantee the outcome of any case or pending legal matter or the state of the law. When the law changes, our firm changes as well and this new ruling by the California State Supreme Court will be significant and far reaching impact on estate planning for spouses well in the future.

The attorneys at the San Diego estate planning firm of Law Offices of Scott C. Soady, APC have extensive experience. We welcome your inquiry and invite you to contact us by e-mail, or call us toll-free at (877) 435-7411 within California, or (858) 618-5510 outside of California to schedule a free in-house consultation.

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