Same-Sex Marriage and Pre-2014 Wills

Public attitudes towards same-sex marriage have changed dramatically over the last two decades. An October 2020 public opinion survey (Public Religion Research Institute) places support at 70%, but 16 years earlier, support was only 30%. The tipping point in public opinion came around 2011, and the Supreme Court’s Obergefell decision prohibiting restrictions on same-sex marriage followed in 2015.

Supreme Court

But before losing political strength, opponents of same-sex marriage aggressively pushed for changes in state laws and state constitutions expressly forbidding same-sex marriage. By the time the U.S. Supreme Court weighed in, 29 states (including Wisconsin) had changed their state constitutions to prohibit government recognition of same sex marriages. An additional 4 states passed laws prohibiting recognition.

So what does this have to do with wills and end-of-life planning? A will is like a contract: it is supposed to reflect the intent of the person writing it. Usually, though not always, when we say “intent” we mean the intent at the time the contract or will was signed. Thus, if a will calls for an inheritance to go to a child and their “spouse”—an extremely common provision—this inevitably requires the person executing the will to think about who the signer would have regarded as a “spouse.”

It is difficult to imagine that a will drafted after 2015 referencing a person’s “spouse” would be interpreted as limiting that term to individuals of the opposite sex—that is, unless the drafter made their intentions on that point explicit. (And even then, a court might refuse to enforce those wishes on the grounds that they’re unconscionable and contrary to public policy). But for wills drafted prior to Obergefell—when most state governments refused to recognize same-sex marriages, and when this opposition was generally popular—it can become less and less safe to assume the will drafter’s tolerance of same-sex marriages.

It would not be impossible, but resolving the ambiguity could cause a costly legal proceeding, requiring a blunt, public, investigation into the deceased person’s attitudes towards same-sex marriage. Lawyers would gather evidence about the person’s voting history, or private comments to friends and relatives, or faith to try to convince a court or jury of what the individual “really” thought about same-sex marriage.

There is a simple fix for this: Get the will restated. The restated will could explicitly say that when the drafter refers to a “spouse”, they do so regardless of sex. But, as noted before, because interpreting post-2015 wills as having silent anti-same-sex marriage attitudes is unlikely, the mere fact of having an “updated” will could show that the drafter’s attitudes changed with the times. Making this change is simple, can avoid significant legal expenses and acrimony, and of course would be appreciated by inheritors who entered into a same-sex marriage. And, in the remote chance that recent changes to the Supreme Court result in Obergefell being overturned, the updated will could lock in the drafter’s intent now.