Moving Forward by Looking Back: The Retroactive Application of Obergefell

74 Pages Posted: 13 Dec 2016 Last revised: 22 Apr 2017

See all articles by Lee-ford Tritt

Lee-ford Tritt

University of Florida Levin College of Law

Date Written: November 1, 2016


The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging rights and obligations. The decision will predominately impact the realm of real property law, property succession law, employment benefits, and family law. There currently are, and will continue to be, complicated lawsuits concerning the potential retroactive vestment of marital property rights for same-sex married couples, which may also impact third parties such as purchasers, mortgagees, and title insurers. Unfortunately, the Obergefell decision provided no guidance on its retroactive application. Therefore, this Article articulates and defends a rich positive and normative jurisprudential framework through which to analyze the rapidly growing number of real property, trusts and estates, and employment benefits disputes that continue to be initiated in the wake of the Obergefell decision. More importantly, this Article will proffer specific, effective, and tailored remedies to resolve subtle, but important, variances in these rapidly growing number of disputes. This Article is the first to examine the retroactivity of Obergefell as it applies to trusts and estates and property issues.

Keywords: Obergefell, Retroactivity, Retroactive, Void Ab Initio, Same-Sex Marriage, Same Sex Marriage, Trust, Trusts, Will, Wills, Estate Planning, Probate, Remedial Relief, Remedies, Inheritance, Succession, Homestead, Windsor, Intestacy

Suggested Citation

Tritt, Lee-ford, Moving Forward by Looking Back: The Retroactive Application of Obergefell (November 1, 2016). Wisconsin Law Review, Vol. 5, p. 873, 2016; University of Florida Levin College of Law Research Paper No. 17-12. Available at SSRN:

Lee-ford Tritt (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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