Navigating Uncertainty in the Face of Potential Challenges to Obergefell v. Hodges

Estate Planning for Same-Sex Couples in Ohio.

As someone who has been shaped by the love and wisdom of my grandfathers, Larry and Jerry Weiss, I approach the issue of same-sex marriage and estate planning in Ohio through a deeply personal lens. Their journey—marked by challenges, triumphs, and unconditional love—has not only inspired me as an attorney but has also instilled in me a profound commitment to fighting for justice, dignity, and security for all families, regardless of sexual orientation. 

I perhaps somewhat naively believed that their marriage, and the marriage of countless other LGBTQ+ Ohioans, was safe, along with all the legal protections that provides. Last month, Kim Davis, the disgusting former Kentucky clerk of court who was ordered to pay $360,000.00 in damages for refusing to give marriage licenses to same-sex couples, petitioned the U.S. Supreme Court to overturn Obergefell v. Hodges, the 2015 Supreme Court case that established the right to same-sex marriage. 

The current makeup of the court suggests a non-zero possibility that the U.S. Supreme Court could overturn Obergefell. Ohio has a statute on the books, R.C. 3101.01, that states that any marriage between persons of the same sex has no legal force in Ohio, including marriages entered into outside the state of Ohio. In other words, Ohio would recognize no same sex marriages in any state. 

Marriage affects the default legal relationships between people. Without it, we are back to pre-2005 planning for same sex couples to make sure that their legal rights are upheld. 

What Is at Stake If Obergefell v. Hodges Is Overturned? 

Obergefell v. Hodges, decided by the U.S. Supreme Court in 2015, recognized the constitutional right of same-sex couples to marry nationwide. It provided legal recognition, security, and equal treatment under the law. However, if Obergefell were to be overturned, the legal status of married homosexuals in Ohio could be thrown into doubt, potentially stripping families of critical rights and protections. 

Let’s examine what an overturn could mean in Ohio: 

• Marriage Recognition: Ohio’s prior laws defined marriage as between one man and one woman. If Obergefell is overturned, Ohio could revert to those pre-2015 laws, meaning existing same-sex marriages might no longer be recognized by the state. 

• Property Rights: Spouses have unique rights to jointly owned property, survivorship, and protection from disinheritance. Without legal marriage recognition, these rights could vanish for same-sex couples. 

• Inheritance: The right to inherit from a spouse if there is no will is guaranteed under Ohio law—but only if the marriage is recognized. Unrecognized marriages could leave same-sex partners without automatic inheritance rights. 

• Health Care Decisions: Spouses commonly have the authority to make medical decisions for an incapacitated partner. The loss of legal marriage might require same-sex couples to rely on alternative legal tools to preserve these rights. 

• Parental Rights: For families with children, marriage recognition can affect adoption, custody, and support issues, adding another layer of complexity and vulnerability if overturned. 

Estate Planning Steps to Protect Your Family 

While the prospect of losing marriage recognition in Ohio is daunting, there are concrete estate planning strategies that same-sex couples can use to safeguard their families. As an attorney—and as someone who cherished the safety and happiness of my own grandfathers—I urge all married LGBTQ+ Ohioans to proactively address these risks with comprehensive planning. 

1. Create or Update Wills 

If your marriage is not recognized, your spouse may not inherit automatically if you pass away without a will. A will lets you designate exactly who will receive your property, regardless of marital status. Both partners should prepare robust, legally valid wills specifying each other as primary beneficiaries and naming trusted alternates. 

2. Establish Trusts 

Trusts are powerful tools for passing assets directly to your partner and other loved ones, avoiding probate and potential legal challenges. A revocable living trust, for example, can transfer property and assets seamlessly, regardless of state marriage laws. For Larry and Jerry, a trust ensured their home and savings remained secure for each other if marriage recognition were lost. 

3. Designate Powers of Attorney 

A durable power of attorney for finances allows your partner to manage your assets if you become incapacitated. A healthcare power of attorney grants them the right to make medical decisions on your behalf. These documents are essential, especially if marriage is not legally recognized—without them, a partner could be excluded in favor of biological relatives. 

4. Name Beneficiaries Directly 

Review all accounts—retirement plans, life insurance policies, bank accounts—and ensure your partner is named as the beneficiary. This bypasses the need for legal spouse recognition, ensuring your partner receives these assets directly. 

5. Consider Joint Ownership with Rights of Survivorship 

For real estate and other valuable assets, titling property jointly with rights of survivorship means ownership automatically transfers to your partner upon your death, regardless of legal marriage status. This can be a crucial safeguard for couples facing uncertainty. 

6. Prepare Advance Directives 

Living wills and advance directives communicate your wishes regarding end-of-life care and medical treatment. Naming your partner as your decision-maker reinforces their authority, even if the law does not recognize your marriage. 

7. Plan for Children and Parental Rights 

If you and your partner have children, make sure you establish guardianship and custody arrangements in writing. Ohio courts may not automatically recognize both parents in a same-sex couple if marriage recognition is lost, so legal documentation is vital. 

What Else Can Couples Do? 

• Consult with an LGBTQ+ Friendly Attorney: Laws and policies are ever-changing. An attorney who understands these issues can craft a plan tailored to your needs and keep you updated on new developments. 

• Stay Informed and Advocate: Stay connected with advocacy groups, local organizations, and legal updates so you can respond quickly to changes affecting your rights and protections. 

Why Planning Matters—A Personal Note 

These issues are not just legal—they are deeply human. The possibility of losing marriage recognition is not an abstract threat; it’s one that could disrupt the bedrock of thousands of loving families in Ohio. Estate planning is more than paperwork; it’s a lifeline, a way to protect the dignity, financial security, and emotional wellbeing of those you cherish most. 

I know—from my family’s own experience—how vital it is to be proactive. By taking concrete steps now, same-sex couples can make sure their wishes are honored, their families are cared for, and their legacies endure regardless of the legal landscape. 

If you have questions or wish to discuss your own estate planning needs, please reach out to NP Weiss Law. Together, we can ensure that your rights and relationships are safeguarded, come what may. 

📅 Ready to move forward? Schedule a paid consultation with Attorney Nicholas Weiss. 
📞 Have more questions? Contact our office. 

About the Author

Nicholas Weiss is the founder and supervising Attorney of N.P. Weiss Law, serving clients across Northeast Ohio in real estate, family law, and estate planning. He is committed to helping property owners, businesses, and families navigate legal challenges with clarity and confidence. Learn more about Nicholas Weiss. 

This blog post is for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. For personalized guidance, please consult with a licensed Ohio attorney.