As we approach 2026, same-sex couples have reason for cautious optimism, and even better reason to act. The Supreme Court's November 2025 decision to decline Kim Davis's petition challenging marriage equality was welcome news. But if there's one lesson from the past decade of LGBTQ legal progress, it's this: the couples who fare best are those who prepare for uncertainty, not those who assume permanence.
At Carolina Family Estate Planning, we've always believed that comprehensive estate planning shouldn't depend on any single legal framework. That's why we include protective language in our documents as standard practice, provisions designed to honor your wishes regardless of how laws may change. Whether you're creating your first estate plan or reviewing existing documents, the start of a new year is the perfect time to ensure your family is protected.
This guide explains the current legal landscape, why proactive planning matters more than reactive worry, and what steps you can take now to enter 2026 with confidence.
This article is for informational purposes only and does not constitute legal advice. Every situation is unique. Please consult with a qualified estate planning attorney about your specific circumstances.
The Legal Landscape Heading Into 2026
The Supreme Court Declined to Revisit Marriage Equality, For Now
On November 10, 2025, the Supreme Court denied certiorari in Davis v. Ermold, declining to hear former Kentucky clerk Kim Davis's explicit request to overturn Obergefell v. Hodges. The Court's silence, without even a statement from Justices Thomas or Alito, who previously criticized the decision, suggests marriage equality has more stability than many feared.
This represents a meaningful shift from 2020, when Justice Thomas, joined by Justice Alito, issued a statement calling Obergefell a "problem that only [the Court] can fix." More recently, Justice Amy Coney Barrett acknowledged the "very concrete reliance interests" at stake, while Justice Alito noted that Obergefell is "entitled to the respect afforded by the doctrine of stare decisis."
With approximately 823,000 married same-sex couples in the United States and 70% of Americans supporting same-sex marriage, the practical landscape has changed substantially since 2015.
But stability is not the same as certainty. No other cases are currently pending before the Supreme Court seeking to overturn Obergefell, but state-level efforts continue. In 2025 alone, at least five states introduced resolutions urging the Court to reverse marriage equality, and four states proposed "covenant marriage" bills restricted to opposite-sex couples, potential vehicles for future challenges.
The Respect for Marriage Act: Important Protection With Limits
The Respect for Marriage Act, signed in December 2022, provides crucial federal backstop protection. If Obergefell were ever overturned, RFMA would require federal recognition of existing marriages and mandate interstate recognition of marriages validly performed elsewhere.
However, RFMA has important limitations that underscore why estate planning matters:
What RFMA does: Requires federal recognition of valid same-sex marriages; requires states to recognize marriages performed in other states; provides access to over 1,100 federal benefits tied to marriage including Social Security spousal benefits, estate tax protections, and joint filing status.
What RFMA does not do: Require states to issue new marriage licenses; prevent states from enacting new marriage bans; fully protect parental rights in hostile states; guarantee state-level benefits and protections.
This means your federal protections remain strong, but your state-level rights could become vulnerable if federal constitutional protection were to change, which brings us to North Carolina's unique situation.
North Carolina's Constitutional Complication
Amendment One still exists in the North Carolina Constitution. Article XIV, Section 6 declares that "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State." While unenforceable since federal courts struck it down in 2014, this provision has never been formally repealed.
Removing Amendment One would require a three-fifths vote in both the NC House and Senate, followed by majority voter approval, a high bar in the current political environment. House Bill 175, introduced in February 2025, proposes exactly this, but the bill was referred to the Rules Committee, where it has remained stalled.
This creates what attorneys call a "dormant" legal vulnerability. While current federal law renders Amendment One inoperative, its continued presence in the state constitution means North Carolina lacks the affirmative state-level protections that exist in some other states.
The good news for Triangle area residents: Approximately 30% of North Carolina's population now lives in jurisdictions with LGBTQ-inclusive nondiscrimination ordinances, including Raleigh, Durham, Charlotte, Greensboro, and Winston-Salem. Same-sex marriage has been recognized here since October 2014, and couples enjoy full rights under current law, including intestate succession, spousal elective share protections, tenancy by the entirety, and medical decision-making authority.
The question isn't whether your rights exist today; they do. The question is whether your estate plan is structured to protect you regardless of how the legal landscape might evolve.
Why Estate Planning Should Never Depend on a Single Legal Framework
The Estate Planning Gap in the LGBTQ Community
Research consistently shows that LGBTQ individuals are 10-33% less likely than the general population to have a will or estate plan. Among LGBT investors with net worth between $100,000 and $1 million, only 56% have a will compared to 70% of non-LGBT investors. Among those with net worth over $5 million, the gap narrows but persists: 72% versus 91%.
This disparity exists despite heightened planning needs driven by several factors:
Family dynamics often require explicit documentation. According to Pew Research, 39-40% of LGBTQ adults have been rejected by a close family member. Human Rights Campaign data shows 57.4% of LGBTQ+ youth have experienced at least one form of parental rejection. Without proper estate planning, these estranged family members may inherit under intestate succession laws, receive healthcare decision-making authority, or be positioned to contest wills.
Marriage alone doesn't solve everything. Only about 10% of LGBT Americans are married, meaning the vast majority lack automatic inheritance protections. Even for married couples, marriage recognition alone doesn't address all the complexities that can arise, especially when traveling, dealing with unsupportive family members, or facing medical situations in unfamiliar settings.
Family structures often involve unique complexities. Approximately 2.57 million LGBTQ adults are parenting children, with same-sex couples adopting at seven times the rate of different-sex couples. The Williams Institute found that 30% of LGBQ parents are not legally recognized or are unsure of their legal status as a parent, a startling vulnerability that estate planning and parentage orders can address.
The Lesson: Build Protection That Doesn't Depend on Recognition
The attorneys who have served LGBTQ clients the longest understand that comprehensive protection means building legal frameworks that work regardless of whether relationships receive official recognition.
As Angela Giampolo of Giampolo Law Group explains: "A Revocable Living Trust is what we have been using for decades to recreate a marriage. If your relationship is a castle, consider this a moat around your castle, protecting you from government and family hostility."
This isn't about expecting the worst. It's about the same prudent planning that leads people to buy insurance, diversify investments, and maintain emergency funds. Hope for the best, plan for uncertainty.
CFEP's Proactive Approach: Protective Language as Standard Practice
What Our Protective Language Does
At Carolina Family Estate Planning, we include specialized protective language in our documents for same-sex couples as standard practice, not as a reaction to any specific threat, but because comprehensive protection has always been our philosophy.
Our standard provisions include: If a client's marriage is ever invalidated solely due to a change in law, any provisions naming the spouse as agent, executor, trustee, or beneficiary remain in effect unless the client personally revokes or amends them.
This means your documents continue to work as intended even in worst-case scenarios. Your partner remains your healthcare decision-maker. Your trust provisions remain effective. Your wishes are honored.
Additional protective strategies we incorporate:
- Referencing partners using multiple relationship descriptors (by name, not just "spouse")
- Including relationship history and commitment details where appropriate
- Using identification methods that don't depend solely on marital status
- Incorporating strong anti-contest provisions to deter challenges from hostile family members
Why This Matters Beyond Marriage Recognition
Even with marriage fully recognized, comprehensive estate planning addresses situations where marital status alone may not be enough:
Medical emergencies during travel: Healthcare facilities may not immediately recognize spousal authority, especially in emergencies. Standalone healthcare powers of attorney and HIPAA authorizations ensure your partner can act immediately.
Interactions with unfamiliar institutions: Banks, hospitals, and other institutions sometimes create friction despite legal protections. Comprehensive documentation removes ambiguity.
Protection against family challenges: Estranged family members sometimes contest estate plans. Strong documentation, proper execution, and anti-contest provisions provide defense in depth.
Privacy and efficiency: Trusts avoid probate, keeping your family's affairs private and enabling faster asset transfer without court involvement.
Your 2026 Planning Checklist
If You Have No Estate Plan: Start Here
The new year is an excellent time to create the foundation of protection your family deserves. A comprehensive estate plan for same-sex couples typically includes:
Revocable Living Trust: Provides privacy (avoiding public probate records), seamless asset transfer, and protection against challenges. Names beneficiaries explicitly without depending on marriage recognition.
Pour-Over Will: Addresses any assets not transferred to the trust and names guardians for minor children.
Durable Financial Power of Attorney: Allows your designated person to manage finances if you're incapacitated. Should name agents by full legal name with explicit authority spelled out.
Healthcare Power of Attorney: Ensures your partner makes medical decisions. Attorneys often include language authorizing agents to make all typical spousal decisions regardless of marital status recognition.
HIPAA Authorization Forms: Ensure your designated people can access your medical information.
Living Will/Advance Healthcare Directive: Expresses wishes for end-of-life care.
Hospital Visitation Directive: Particularly important for travel, establishes visitation rights in settings that may not immediately recognize your relationship.
If You Have Existing Documents: Review for These Issues
If you already have an estate plan, use the start of the new year to ensure your documents provide comprehensive protection. Consider a review if your documents:
- Were created before 2015 (pre-Obergefell)
- Rely primarily on marital status without protective language
- Don't name beneficiaries and agents by full legal name
- Lack anti-contest provisions
- Haven't been reviewed in three or more years
- Don't address what happens if marital recognition changes
- Were created in a different state
For Parents: Special Considerations
If you have children where both parents aren't biologically related or where only one parent has completed adoption, securing parentage through court orders should be a priority heading into 2026.
GLBTQ Legal Advocates & Defenders (GLAD Law) states: "Birth certificates are important records, but while they reflect parentage, they do not by themselves legally establish parentage." Only adoption decrees or court orders establishing parentage provide protection that must be recognized under the Constitution's Full Faith and Credit Clause in all 50 states.
If you haven't already, discuss second-parent adoption or court-ordered parentage establishment with an attorney. This is one of the most important steps LGBTQ parents can take to protect their families.
Practical Steps to Take Now
Before year-end:
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Gather existing documents and review them against the checklist above
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Create an inventory of your assets, including how property is titled
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Compile a list of all beneficiary designations (retirement accounts, life insurance, bank accounts)
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Have a conversation with your partner about your wishes and concerns
In early 2026:
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Schedule consultations with an estate planning attorney
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Review and update beneficiary designations on all accounts
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If you're a parent, discuss parentage security options
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Ensure healthcare documents are on file with your doctors and accessible in emergencies
What to Expect When You Meet With Us
We understand that estate planning can feel overwhelming, especially when navigating questions about legal protections. Here's what to expect when you work with Carolina Family Estate Planning:
A comfortable, confidential conversation: We'll discuss your relationship, your assets, your concerns, and your goals. We welcome all families.
Education about your options: We'll explain how current law affects your situation, what protective strategies are available, and how different approaches compare.
Customized recommendations: Every family is different. We'll recommend a plan tailored to your specific circumstances, not a one-size-fits-all template.
Transparent pricing: We explain costs upfront so you can make informed decisions.
Reasonable timeline: Most estate plans are completed within several weeks of initial meetings.
Ongoing relationship: Laws change, circumstances evolve, and we're here to help you keep your plan current.
Enter 2026 With Confidence
The past decade has brought remarkable progress for LGBTQ families, and also reminders that progress requires protection. The Supreme Court's November 2025 decision not to revisit Obergefell is genuinely good news. The Respect for Marriage Act provides meaningful federal protection. Public support for marriage equality has never been higher.
And yet: North Carolina's Amendment One remains on the books. State legislatures continue to introduce challenges. The legal landscape can shift in ways no one fully predicts.
This isn't cause for alarm. It's cause for action.
The couples who fare best aren't those who assume permanence or those who live in fear. They're the ones who take sensible steps to protect their families while hoping for the best. Estate planning isn't about predicting disaster; it's about ensuring your wishes are honored and your loved ones protected no matter what comes.
The start of a new year is a natural time for this kind of forward-thinking. As you set goals and make plans for 2026, consider whether your estate plan reflects the family you've built and the future you want to protect.
Ready to Get Started?
Carolina Family Estate Planning provides the Triangle's LGBTQ community with comprehensive estate planning services. With offices in Cary and serving Durham, Chapel Hill, Raleigh, and surrounding areas, we're your local resource for thoughtful protection planning.
Schedule Your Consultation Today
Call us at (919) 443-3035 or contact us online to discuss your planning needs.
Carolina Family Estate Planning is a Cary, North Carolina, law firm serving the Triangle area with comprehensive estate planning, elder law, asset protection, and probate services. We welcome all families and are committed to providing thoughtful, professional service regardless of how the legal landscape may evolve.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. Every situation is unique, and outcomes depend on specific facts and circumstances. No attorney-client relationship is formed by reading this article. Please consult with a qualified estate planning attorney licensed in your state for advice about your specific situation.
