The United States Supreme Court has recently overturned decades of precedent ending the constitutional right to abortion. See Dobbs v. Jackson Women’s Health Organization. Justice Thomas, concurring in the judgment, wrote that the Court “should reconsider all of this Court’s substantive due process precedents,” including Obergefell v. Hodges, which created the constitutional right to same-sex marriage. This threat to overturn the right to same-sex marriage has far-reaching consequences.
Healthcare decisions may be impacted. Should a person become incapacitated, or unable to make decisions for themselves, without a Medical Power of Attorney or Advanced Medical Directive, a physician will attempt to determine a representative to make decisions on behalf of the incapacitated person. These decisions may include whether to remain on a ventilator, nutrition, surgical treatment, nursing care, or the desire for pain medication. If one does not have a Medical Power of Attorney, physicians are mandated to follow a precise list of individuals, first being one’s spouse. W. Va. Code § 16-30-8. If there is no legally recognized spouse, then the decision falls to descendants, then parents. Id.
Yet, if one has a Medical Power of Attorney then the document controls regardless of whether the Supreme Court overturns established precedent regarding marriages. A Medical Power of Attorney explicitly details who may make health care decisions, including access to medical records, organ donation, and ongoing medical concerns.
Another area of concern is who will inherit assets after death. Under most state law, if one dies without a Last Will and Testament, then their property is distributed by intestate succession. W. Va. Code § 42-1-2. If married at the time of death, then the entire estate is distributed to one’s spouse. W. Va. Code § 42-1-3. Should the Court overturn Obergefell, the Court could nullify same-sex marriages retroactively and change the expected path of distribution. If not legally married, then the estate would pass to descendants. W. Va. Code § 42-1-3a. If no descendants, then to parents and their descendants. Id.
However, a valid and properly drafted Last Will and Testament eliminates any question as to who will inherit. A Last Will and Testament disposes of the estate by its terms and will not be changed should the Supreme Court overturn Obergefell.
Justice Thomas has cast doubt on an established constitutional right. Should the Court determine that there is no constitutional right to same-sex marriage, having an estate plan will be imperative to ensure that one’s wishes are followed. If you have questions or wish to create or revise your estate plan, contact a member of the Bowles Rice Tax team. We can help protect your right to have a say on who makes important medical decisions and who should receive your estate.