Same-Sex Couples Face Challenges in Determining Whether Spouses Qualify as Trust Beneficiaries

Spouses often use trusts to pass monetary benefits to theother spouse, but the law is often unclear on whether same-sex spouses canbecome the beneficiary of their partner’s trust. 

If the Supreme Court finds the Defense Against Marriage Actconstitutional, states will not have to recognize the relationship laws ofother states and will be left on their own to determine the definition ofspouse.  As a general rule, states willrecognize marriages from other states unless it is contrary to the state’spublic policy. 

If the trust document is ambiguous on the definition ofspouse and the grantor’s intent is unclear, “trustees and fiduciaries oftenturn to the courts to help resolve the issue.” Absent a Supreme Court ruling providing some clarity on this issue, attorneyswill continue to rely on complex and unclear state laws to guide same-sex couples onthis issue.

See States Decide: CanSame-Sex Spouses Become the Beneficiary of Their Partners’ Trust?, ABA Now,May 8, 2013.

Special thanks to Margaret Ryznar (Associate Professor of Law, Indiana University Robert H. McKinney School of Law) for bringing this article to my attention.