In the Commonwealth of Massachusetts, more than twelve thousand same-sex couples have taken advantage of their new legal rights by marrying under the recognition of marital equality changes enacted five years previously. However, the legal status of these individuals' wills and estate plans are in jeopardy, unless updates are made.
Five years ago, before the recognition of equal rights to marriage, same-sex couples still sought to protect themselves, their families, and their partners as much as possible under the existing laws. For many same-sex partners, this meant creating estate-planning documents such as wills, power of attorney documents, health care proxies, and other important legal documents. These documents were intended to protect and provide for their existing partner, as well as any other intended beneficiaries such as family members and other loved ones.
While many same-sex couples quickly took advantage of the change in marriage laws, many were unaware of the unintended legal consequences of their union, especially as it relates to estate and health care planning. According to Massachusetts General Laws, Chapter 191, Section 9, any marriage that takes place subsequent to the execution of a will automatically revokes that will, except in circumstances where the will was specifically created in anticipation of an upcoming union, with an explicit written mention of this in the will itself. Therefore, many same-sex partners, who had previously taken steps to protect one another in the event of incapacitation or death, unintentionally nullified their pre-existing efforts via their recent union. Unless you and your partner have specifically done otherwise, your prior legal wills and other estate planning documents are no longer valid following your marriage and need to be updated.
If an individual enters into marriage, his or her past legal will is no longer valid, unless updated. If not updated, the invalid status of the will means the estate will be deemed without a will (or intestate) by the courts. Therefore, any careful estate planning measures one may have taken previously are no longer viewed as legally permissible, and in turn, the estate will enter probate, which cannot guarantee the distribution of your assets according to the previously, and no longer valid, established estate planning documents.
As soon as possible after marrying your spouse, or even immediately prior to the union, it is essential to review all your past estate planning, health care, and financial documents and legal instruments that protect your wishes upon incapacitation or death. For couples recently married, this means seeking the assistance of an attorney to ensure both parties' wills are redrafted, or otherwise updated to enforce their legality.