Worms Escaping The Can – The Gay Marriage Ruling and Probate

The Supreme Court’s recent Obergefell ruling stated that two individuals of the same sex have a constitutional right to marry, and that ruling calls forth some interesting questions. For example, in law school we learned that, when the Supreme Court decides for the first time that a person has a constitutional right to engage in some activity, that right is a right which has always existed, and the Court is only then annoucing its intention to safeguard it.

If this is indeed so, then there are many states, including Texas, which have not previously recognized same sex marriage. This is important because, in those states, when a partner in a same sex relationship dies, the surviving partner, absent a will, does not inherit anything of the estate of his or her deceased partner. In such cases, it is the children of the deceased partner who generally inherit the estate.

Now, however, we find out that those individuals who did not have the ability to get married because such was not recognized by their state (or previously were married in a foreign state that did recognize same sex marriage), they should have been allowed to inherit the estate as a surviving spouse.

I wonder how many cases will need to be reopened to redirect inheritances towards spouses of gay decedents from that decedent’s children to the unconstitutionally-denied spouse? Litigation aplenty is in store.

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