Obergefell Faces Legal Challenges: What This Means for Your Estate Planning

The landmark 2015 Supreme Court ruling of Obergefell v. Hodges, which extended marriage rights to same-sex couples nationwide, has been formally petitioned to be overturned by Kim Davis, a former Kentucky County clerk who was imprisoned for refusing to grant marriage licenses to same-sex couples. The recent petition cites that certain religious objections to issuing marriage licenses should be protected under the First Amendment. 

This appeal comes amid a renewed campaign by opponents to marriage equality. For example, in 2025 alone, at least nine U.S. states have either requested the Supreme Court to overturn Obergefell or have passed legislation restricting same-sex couples from receiving marriage licenses. Recently, in September of 2025, Justice Clarence Thomas commented that precedents like Obergefell should be reexamined and are not “gospel” and should not be immune from reversal when they conflict with constitutional principles.

What This Means for Same-Sex Couples

If the Supreme Court accepts the case, it could have a significant impact on marriage law within the United States, particularly in areas of estate planning and ownership.

Property Ownership: Married couples benefit from special forms of property ownership that offer strong protections and automatically transfer ownership to the surviving spouse upon the death of one spouse.

Inheritance Rights: A surviving spouse inherits property under intestacy laws even if there is no will. If Obergefell is overturned, same-sex married couples could lose this right.

Estate Planning Needs: Same-sex couples may need to rely heavily on wills, trusts, powers of attorney, patient advocate designations, and other legal tools to guarantee their wishes are honored.

Steps for Same-Sex Couples to Take

In spite of current protections, same-sex couples should prepare and/or review legal documents to secure their legal rights should the laws ever change. Legal documents, such as: 

• Revocable Living Trust and Will: Control how your assets are distributed to your partner and state guardianship desires.

• Powers of Attorney: Designate a trusted person to make financial and medical decisions on your behalf.

• Healthcare Directive: Prepare your medical treatment and name your partner as the primary decision maker.

• Beneficiary Decisions: Review life insurance policies, retirement accounts, and bank accounts.

• Property Titles: Joint ownership with survivorship rights can be used to protect your shared home.
• Agent for Disposition of Remains: Name a trusted person to have the authority to determine how the funeral and burial will occur, so that your partner’s wishes are respected and followed.

When you prepare these documents, you are taking proactive steps to protect your relationship and financial security if or when changes to marriage law protections occur.