Same-Sex Spouses Estate Planning Considerations

In a perfect world I would only have to discuss estate planning for married people and unmarried people.  But alas we live in the imperfect United States and I have to discuss estate planning for opposite-sex married people, same-sex married people, and single people.  I resent having to break down married spouses into two categories because one category is not given the full benefits (and burdens) of being married.

In 1967 the United States Supreme Court ruled that the Commonwealth of Virginia's anti-miscegenation violated Due-Process and Equal Protection and stated in its ruling for Loving v. Virginia

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

But until this basic civil right is given to all married couples,  I have to address estate planning for same-sex couples separately. 
Same-sex married couples in New York may receive the statutory protections afforded opposite-sex couples when it comes to intestate inheritance (while in New York or another state that recognizes their marriage) but they do not receive the same protections when it comes to Federal Estate Tax issues. Regardless of where the couple is domiciled, they cannot take the marital deduction on a Federal Estate Tax Return, which could cost thousands (if not millions) of dollars. 

Then there is also the issue of gift tax.  Between opposite-sex spouses there is no limit on annual gifting between spouses (this is sometimes used as an estate planning tool), but because the Federal government doesn't recognize same-sex spouses, the annual exclusion amounts apply and amounts in excess will use up your life time exclusion amount.   

If a couple married in New York later moves to a state that does not recognize their marriage it will be imperative for them to have a Last Will and Testament, otherwise the surviving spouse could inherit nothing as the decedent will be deemed to have been single/unmarried. 
If the couple has children, the non-biological parent could lose custody if they have not formally adopted the child or appointed a guardian in a Will. 

An issue that also needs to be discussed is divorce.  If a same-sex couple executes Wills leaving their estate to the surviving spouse, what will happen if the couple later moves to a state where there marriage is not recognized and then they divorce?  Divorce automatically revokes a Will that leaves property to the now ex-spouse, but if the state in which the person dies never recognized the marriage to begin with, will confusion ensue as to whether the dispositions under that Will are still valid?  (I would suspect that the laws of the state in which the Will was validly executed would control its validity at the time of the testator's death, but that does not mean that confusion and delay would not ensue). 

The number of issues that arises when constructing an estate plan for same-sex couples is dizzying.