USA – OKLAHOMA Law and Practice Contributed by: Aaron Bundy and Danya Bundy, Bundy
Healthcare decisions are addressed through the Okla - homa advance directive statutes, 63 O.S. Section 3101.1 et seq, combining a living will with the appoint - ment of a healthcare proxy, executed with two quali - fied witnesses, and directives validly executed in other states are honoured. In practice, the funded revocable trust is the strongest incapacity tool, because a suc - cessor trustee steps into asset management without any third-party acceptance friction. 8.4 Elder Law Longevity planning has become a core part of the practice. Long-term care insurance, including Oklaho - ma Long-Term Care Partnership policies that provide a dollar-for-dollar Medicaid asset disregard, address - es the cost of extended care, and Medicaid planning around the five-year lookback, often through irrevo - cable income-only trusts, preserves family assets where insurance was never obtained. Property tax relief for qualifying seniors, including valuation freezes for income-eligible homeowners, helps clients age in place. The growth area is protecting elders from financial exploitation. Oklahoma criminalises exploitation of elderly and vulnerable adults, and adult protective services investigates reports. Financial institutions increasingly flag suspicious transactions. The struc - tural protections work better than the remedial ones. Funded revocable trusts with corporate co-trustee or trust protector oversight, transaction monitoring, spending guardrails, and early introduction of succes - sor fiduciaries to the family’s advisors catch problems while they are still small. 9. Planning for Non-Traditional Families 9.1 Children Adopted children inherit from and through their adop - tive parents on equal terms with biological children under 10 O.S. Section 7505-6.5. Oklahoma law is unu - sual in that adoption does not extinguish the child’s ability to inherit from biological parents, a dual capac - ity the courts treat as settled, although the biological parents lose inheritance rights from the child. Chil - dren born outside marriage inherit from the mother in all events and from the father where paternity was
acknowledged in a signed writing, judicially deter - mined, or shown by the father’s public acknowledg - ment in receiving the child into his family, under 84 O.S. Section 215. Posthumous children conceived before a parent’s death are treated as living at the parent’s death under 84 O.S. Section 228. Children conceived after a parent’s death through assisted reproduction are not clearly addressed by the intestacy statutes, so instruments should define descendants and issue expressly, stating whether stored genetic material can create beneficiaries and within what time limits. Oklahoma permits gesta - tional surrogacy under the Gestational Agreement Act, 10 O.S. Section 557.1 et seq, adopted in 2019. The regime is court supervised. Agreements must be validated by a court before embryo transfer, with resi - dency requirements, medical evidence supporting the need for surrogacy, separate independent counsel for the carrier and the intended parents, and allocation of medical expenses, with the intended parents rec - ognised as the legal parents and confirmed by court order after birth. For class gift purposes, children of validated surrogacy arrangements are children of the intended parents, and careful drafting should confirm the result in every case. 9.2 Same-Sex Marriage Same-sex marriage has been recognised in Oklahoma since the Tenth Circuit’s decision in Bishop v Smith in 2014, confirmed nationwide by Obergefell v Hodges in 2015. Married same-sex couples receive identi - cal treatment for every purpose, including intestacy, the spousal elective share, joint income tax filing, the federal marital deduction, and portability elections. Because Oklahoma recognises common law mar - riage, same-sex couples may also be married at com - mon law, and probate courts have confronted claims that a common law marriage arose from relationships predating 2014, which creates opportunity and risk in estate administration. In Eldredge v Taylor , the Oklahoma Supreme Court enforced a same-sex couple’s written co-parenting agreement as a contract. In Ramey v Sutton , the court recognised a non-biological mother who had planned a family and parented jointly, in years when the cou - ple could not marry, as standing in loco parentis and
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