Conditions in wills and trusts that limit or dictate how an asset can be used or passed along to heirs are common. But the problem with many is that they were drawn up in a time before same-sex marriage was legal, or even contemplated, which means that the language used might not apply to married , gay couples. For example, a a trust clause that leaves a remainder to wife and children might not apply to a male-sex couple since there is, strictly speaking, no wife even though the male beneficiary is legally married. In addition, clauses relating to children may be problematic in situations where not all children of a couple may be biologically related to both parents and formally adopted. As a result, it would be a good idea to seek specialized legal advice in situations where there is doubt about the applicability of a stipulation concerning marriage in a will or trust. Sometimes the issue can be resolved, with the cooperation of the trustee, by decanting into a new trust but the situation might require a court to get around problematic language, if it can be gotten around at all. Unfortunately it will likely take years for the courts and legislatures to address issues such as these so plan accordingly if this is a looming worry.
See Carol J. Clouse, Struggle Not Over For Gay Heirs, Private Wealth, February 16, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
