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Same-Sex Marriage and Estate Planning

At the present time, Tennessee does not permit same-sex marriage and marriages legally performed in another state are not recognized in Tennessee. As you may know, this subject is involved in a lot of litigation around the country and a case is presently pending before the United States Supreme Court. It is expected that decision will have significant impact on the legality of same sex marriage and whether states must recognize a lawfully performed marriage from another state.

The uncertainty surrounding the recognition of same-sex marriage should not prevent a couple in Tennessee from planning their estates. In fact, the uncertainty makes estate planning much more important for several reasons. First, in a traditional marriage, assets can be held jointly with a spouse and upon the death of the first spouse, by law those assets pass automatically to the surviving spouse. But if same-sex marriage is not permitted by law or the marriage is not recognized as valid, those assets will not automatically pass to the” surviving spouse” by operation of law because they are not lawfully recognized as the spouse. Therefore, planning must be done to pass assets to the other person in a different way from passing them to the spouse. 

Second, estate planning is all about stating the intentions of the person doing the planning, whether leaving their assets through a will or trust or granting a power of attorney. Whether same-sex marriage is recognized or not, each individual in the relationship still has the right and ability to leave assets to any person of their choosing. That requires planning and specific attention to establish the mechanism for those assets to pass upon death of the first individual.

At the present time, many of these assets may be left to the “spouse” but it takes more planning and possibly more structure to accomplish these goals. Every fact situation is different but none of these facts should deter or delay a couple from seeking qualified legal assistance to plan their estate, to clearly state their intentions and to provide for their loved ones. Please call my firm and speak with me about how I can help you plan to care for your loved ones.



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706 Walnut St, # 402, Knoxville, TN 37902
| Phone: (865) 546-5600

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