The recent news that the U.S. Supreme Court will consider whether to hear a challenge to same-sex marriagehas understandably created anxiety among LGBTQ+ couples across the country. On November 7, 2025, the Court is scheduled to discuss Kim Davis' petition challenging the landmark 2015 Obergefell v. Hodges decision that recognized constitutional marriage equality nationwide.
While the Supreme Court has not yet agreed to hear the case, and denial of the petition could come as early as November 10, 2025, the mere possibility of revisiting marriage equality highlights the importance of proactive legal protection for same-sex couples and their families.
Understanding the Current Legal Landscape
In 2015, Obergefell v. Hodges established that same-sex couples have a constitutional right to marry throughout the United States. This decision built upon the foundation laid by United States v. Windsor (2013), which struck down the Defense of Marriage Act's definition of marriage as exclusively between a man and a woman.
For Maryland residents, same-sex marriage has been legal since January 1, 2013, when the state's Civil Marriage Protection Act took effect following voter approval in November 2012. Maryland was one of the first states to legalize same-sex marriage through a popular vote, providing an additional layer of state-level protection for LGBTQ+ couples.
Washington, D.C. has recognized same-sex marriages since March 2010, when Mayor Adrian Fenty signed the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 into law.
These state and local protections mean that even if federal law were to change, married same-sex couples in Maryland and D.C. would continue to enjoy state-recognized marital rights. However, the potential loss of federal recognition could have significant implications for taxation, Social Security benefits, and interstate recognition of marriages.
Why Estate Planning Matters More Than Ever
Regardless of what happens with future Supreme Court decisions, comprehensive estate planning provides crucial protections that go beyond what marriage alone offers. For same-sex couples who lived through the pre-Obergefell era, estate planning documents served as essential tools to protect their relationships and families when legal marriage wasn't available.
Even with marriage equality established, estate planning remains critical because:
1. Marriage doesn't automatically address all legal scenarios. Without proper documentation, biological family members may challenge a surviving spouse's authority during medical emergencies or after death.
2. Protection for children requires specific documentation. If only one spouse is a biological or adoptive parent, the non-legal parent needs to establish parental rights through legal adoption or other means.
3. Estate planning provides clarity and prevents disputes. Clear documentation of your wishes eliminates ambiguity and reduces the likelihood of family conflicts during difficult times.
4. Federal and state laws can change. Having comprehensive estate planning documents ensures your wishes are honored regardless of shifting political and legal landscapes.
Essential Estate Planning Documents for Same-Sex Couples
Last Will and Testament
A will is the foundation of any estate plan. This document allows you to:
- Designate who inherits your assets
- Name an executor to manage your estate
- Appoint guardians for minor children
- Specify funeral and burial preferences
Without a will, Maryland's intestacy laws determine how your property is distributed. While spouses are prioritized under these laws, having a will ensures your specific wishes are followed and can prevent potential challenges from family members who may not support your relationship.
Durable Power of Attorney for Finances
This document designates someone to manage your financial affairs if you become incapacitated. Your financial power of attorney can:
- Pay bills and manage bank accounts
- Handle investments and retirement accounts
- File taxes on your behalf
- Make decisions about real estate and other property
- Manage health insurance and medical payments
For unmarried domestic partners or couples concerned about family interference, this document is absolutely critical. Even for married couples, explicitly naming your spouse ensures they have clear authority to act on your behalf.
Healthcare Power of Attorney (Advance Healthcare Directive)
Maryland law requires specific documentation to authorize someone to make medical decisions on your behalf when you cannot do so yourself. A healthcare power of attorney:
- Names your healthcare agent (the person who will make medical decisions for you)
- Ensures hospital visitation rights for your partner
- Allows your agent to access your medical records
- Provides authority to make treatment decisions, including end-of-life care
This document is particularly important for same-sex couples because, without it, healthcare providers may default to consulting biological family members rather than your spouse or partner, especially in emergency situations or if family members object to your relationship.
Living Will
While the healthcare power of attorney names your decision-maker, a living will specifies your treatment preferences, particularly for end-of-life care. This document can address:
- Life-sustaining treatment preferences
- Do-not-resuscitate (DNR) orders
- Organ donation wishes
- Preferences regarding pain management and palliative care
Maryland law recognizes living wills as part of advance directives, and having these wishes documented in writing ensures they are honored even if family members disagree with your choices.
Trusts
Depending on your financial situation, establishing a trust can provide additional benefits:
- Revocable Living Trust: Allows you to avoid probate, maintain privacy regarding your assets, and provide for your spouse or partner with more flexibility than a will alone.
- Bypass Trust: For couples with significant assets, a bypass trust (also called a credit shelter trust) can help minimize estate taxes by taking advantage of both spouses' estate tax exemptions.
Maryland's estate tax exemption is $5 million per person (as of 2025), while the federal exemption is approximately $13.6 million per person. Married couples can effectively double these exemptions through proper planning, potentially saving hundreds of thousands in estate taxes.
Protecting Children in LGBTQ+ Families
If you have children, estate planning becomes even more critical. Consider these steps:
- Legal Adoption: If only one spouse is the biological parent, the other spouse should complete a second-parent adoption to establish full legal parental rights. Without adoption, the non-biological parent may have no legal rights to custody or decision-making if the biological parent dies or becomes incapacitated.
- Guardianship Designations: Your will should clearly name guardians for minor children. Without this designation, courts will decide who raises your children, and they may not choose your surviving spouse if that person hasn't legally adopted the children.
- Special Needs Trusts: If you have a child with disabilities, a special needs trust ensures they can inherit assets without losing eligibility for government benefits like Medicaid or Supplemental Security Income.
Understanding Maryland's Unique Protections
Maryland law provides several important protections for married couples, regardless of gender:
- Inheritance Tax Exemption: Surviving spouses are exempt from Maryland's 10% inheritance tax on assets they inherit. Unmarried partners, however, must pay this tax unless they have a properly structured domestic partnership agreement.
- Registered Domestic Partnerships: Since October 1, 2023, Maryland has offered registered domestic partnerships for unmarried couples who want some legal protections without marrying. While not equivalent to marriage, domestic partnerships provide inheritance rights and the ability to serve as personal representative of a partner's estate.
- Property Rights: Married couples in Maryland can hold property as tenants by the entireties, which includes automatic right of survivorship and protection from individual creditors. This property ownership form is only available to married couples.
Reviewing and Updating Your Estate Plan
If you created estate planning documents before same-sex marriage became legal, it's crucial to review and update them. Documents created when marriage wasn't an option may include language or provisions that are no longer appropriate or optimal given your current legal status.
You should review your estate plan:
- After any major life change (marriage, divorce, birth of children)
- When you acquire significant assets or property
- If you move to a different state
- Every three to five years, at minimum
- Whenever tax laws change significantly
Taking Action Now
You don't need to wait for Supreme Court decisions to protect your family. Comprehensive estate planning provides security and peace of mind regardless of political or legal changes. The documents you create today will serve your family for years to come, through whatever challenges may arise.
Schedule Your Estate Planning Consultation Today
At the Law Offices of Thomas Stahl, we understand the unique concerns facing LGBTQ+ couples in Maryland and Washington, D.C. Our experienced attorneys have helped countless same-sex couples protect their marriages, families, and assets through thoughtful, comprehensive estate planning.
Don't wait until it's too late. Whether you're newly married, have been together for decades, or are planning to marry, now is the time to ensure your wishes will be honored and your loved ones will be protected.
Call the Law Offices of Thomas Stahl today at 443-331-2770 to schedule your confidential consultation.Our Columbia, Maryland office proudly serves families throughout Maryland and Washington, D.C.
Together, we'll create an estate plan that provides the protection and security you and your family deserve.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Estate planning laws vary by state and individual circumstances differ significantly. The information contained in this article is current as of October 2025 but laws and regulations may change. For personalized legal advice regarding your specific situation, please consult with a qualified estate planning attorney. The Law Offices of Thomas Stahl is available to discuss your estate planning needs and provide guidance based on current Maryland and District of Columbia law. No attorney-client relationship is created by reading this article or contacting our office until a formal engagement agreement is signed.