Despite overwhelming public support for marriage equality, lawmakers are pushing to overturn Obergefell. As an employee benefits attorney and ally, I want to help same-sex couples protect their families against this political assault.
The American people have spoken clearly—69% support marriage equality—yet anti-equality politicians continue their assault on loving families. Justice Clarence Thomas has explicitly called for reconsidering the Obergefell decision, and Republican lawmakers in nine states are actively pushing resolutions urging the Supreme Court to reverse marriage equality, despite knowing this goes against the will of the people.
With 32 states maintaining constitutional bans on same-sex marriage that would become enforceable if federal protections disappear, loving families face having their legal recognition stripped away. If same-sex marriage protections are dismantled, couples could lose spousal recognition, federal marriage benefits, parental rights, medical decision-making authority, and property inheritance protections.
Employee Benefits: My Area of Expertise
In my employee benefits practice, I’ve seen how devastating it can be when couples haven’t properly protected their workplace benefits. Without marriage recognition, your spouse may not automatically access benefits that married couples take for granted.
Health Insurance and Tax Implications Employer-sponsored health insurance represents one of the most immediate concerns. While many employers extend benefits to same-sex partners, federal tax advantages for spousal coverage depends on marriage recognition. If marriage equality is overturned, the tax treatment of your partner’s health coverage could change dramatically.
Critical Beneficiary Updates Your employee benefit accounts need explicit beneficiary designations that don’t rely on marriage status. For 401(k) and 403(b) plans, federal law typically gives spouses automatic rights, but these protections could disappear. Life insurance through your employer requires specific beneficiary designations—without proper paperwork, benefits could end up in probate or with unintended recipients.
Pension plans present unique challenges with complex spousal benefit elections that must be made during specific time periods. If you haven’t made these elections or marriage recognition disappears, your partner could lose significant monthly income for life.
Social Security Vulnerability Social Security represents one of the most significant potential losses. Spousal benefits allow a lower-earning spouse to receive up to 50% of their partner’s benefit, and survivor benefits provide substantial monthly income after one spouse dies. These benefits depend entirely on marriage recognition and cannot be transferred through beneficiary designations.
Other Essential Protections: Working with the Right Attorneys
While employee benefits are my specialty, same-sex couples need comprehensive protection across multiple legal areas. I work with experienced attorneys in various fields and can connect families with the right professionals.
Step-Parent Adoption: Your First Priority The most critical protection is step-parent adoption for any children where only one parent has legal rights. This creates a legal parent-child relationship that exists independently of marriage and cannot be revoked. I can refer you to experienced family law attorneys who specialize in LGBTQ+ adoption cases and understand the urgency of completing this process.
Estate Planning and Healthcare Decisions Comprehensive estate planning requires coordination between employee benefits and other assets. Your will should explicitly name your partner as beneficiary, and revocable living trusts can help avoid probate complications. Healthcare powers of attorney grant your partner the legal right to make medical decisions when you cannot and ensure hospital access during emergencies.
Legal Contracts and Property Protection Cohabitation agreements can establish rights and obligations that may not be recognized if federal protections disappear. For real estate, joint tenancy with rights of survivorship provides important protection for your primary residence and other property.
Taking Action Now
Begin immediately by reviewing all your employee benefits and updating beneficiary designations with detailed partner information. Schedule consultations with attorneys for step-parent adoption if you have children, and execute healthcare powers of attorney and estate planning documents.
Maintain comprehensive records of all legal documents with certified copies stored in multiple secure locations. Schedule annual reviews to update documents as laws and circumstances change, and don’t wait for political situations to worsen before taking protective action.
Moving Forward with Confidence
While politicians targeting families continue their cruel assault on LGBTQ+ rights, comprehensive legal planning can provide security regardless of political outcomes. In my employee benefits practice, I’ve seen how proper planning provides not just financial security, but peace of mind that every family deserves.
Preparation isn’t about pessimism—it’s about empowerment. Every family deserves legal security and recognition. While I cannot control political outcomes, I can offer my expertise in employee benefits law to help LGBTQ+ families protect their workplace benefits, and I can connect you with trusted colleagues who specialize in the other legal protections you need.
The steps outlined here can help ensure that politics will not undermine the legal security that every loving family should have, regardless of what lawmakers defying public opinion attempt to force upon American families.
As an employee benefits attorney and ally, I’m here to help you protect your workplace benefits and connect you with experienced attorneys for other legal needs. Contact me at anneschmidtlaw.com to discuss your employee benefits planning and get referrals to trusted colleagues for comprehensive family protection.