Mary Farrell and her partner of 17 years have yet to say their wedding vows, even though they own a house together in San Carlos and share assets in a more intimate and complex way than many straight couples. In fact, they've spent tens of thousands of dollars — and many hours — creating a road map to protect each other's well-being in the event that yesterday's U.S. Supreme Court ruling about the Defense of Marriage Act had gone the other way.
Much of the couple's time and money went into estate planning, which became a giant albatross for Farrell as she entered the autumn of middle age. She and her partner set up a revocable trust with specific instructions on what one partner would inherit if the other died — a burden that straight married couples never incur, she said, because their assets are automatically passed on to the surviving spouse. They also had to establish a health care power of attorney, lest one get a stroke, or suffer a car crash, and wind up in the intensive-care unit.
“We wouldn't have been able to call,” Farrell explained, adding that when you're not legally married, “you're treated like a nonentity.”
In all, both partners paid about $5,000 each in attorney fees to set up the trust and maintain it, a cost Farrell might have avoided had she known back in 2000 that the U.S. Supreme Court would eventually repeal part of DOMA. But her Menlo Park-based attorney, Nancy Chillag, recommends that same-sex couples continue taking such precautions until the federal law is fully eradicated, which may never happen.
Because Wednesday's ruling promises to honor each state's individual definition of marriage, couples who enjoy federal benefits in California might immediately lose them should they resettle in another state. They could even lose those benefits while traveling, she warns. If Farrell and her fiancee hadn't arranged for a medical power of attorney, they could have been out of luck if one was struck by a car while vacationing in, say, Indiana. Chillag says these issues loom heavily for same-sex couples on the Peninsula, since so many people work for high-tech companies that require them to transfer to other states.
That issue has certainly vexed HIV physician Michael J. Harbour and his partner, who considered moving to Texas to be closer to Harbour's family. Harbour is another of Chillag's clients, and he'd discussed the possibility of launching a revocable trust as well. Up until the Supreme Court's ruling, it seemed like a worthy investment for a gay couple in California — and Chillag cautions that it's still necessary if Harbour ever moves to Dallas. He says he waffled on that possibility, but ultimately decided he wouldn't want to live in a state that was so hostile to the LGBT community.
In truth, it's hard to say whether it still behooves same-sex couples to invest so heavily in estate planning, given the moral cast of Wednesday's ruling. While it could be read, literally, as an opinion about states' rights, the high court's references to other civil-rights cases suggest there's more at stake. A larger decision could easily be lingering on the horizon.
That won't bring Farrell's $10,000 back, but it might mean it's too early for other same-sex couples to cast their chips in.