Same-Sex Marriage and Estate Planning

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My, my, my.  What a mess.

The Supreme Court’s ruling in United States v. Windsor granted full marriage benefits to same-sex married couples for federal benefits only.  It did not require states to recognize same-sex marriages that originated in other states. The United States Supreme Court left that decision up to the individual states.

Texas, like 33 other states, does not recognize same-sex marriages. So, imagine the issues that will arise for same-sex couples who are legally married in one state, then move to Texas and subsequently need to get a divorce.  Right now, they are stuck with a problem and no legal solution in Texas.

Texas does not recognize the validity of a same-sex marriage for any purpose.  That includes intestacy laws (inheritance rights if someone dies without a will), spousal preference for guardianship and medical decisions, evidentiary privileges preventing testimony by one spouse against the other spouse, and community property.

Currently, Texas does not recognize same sex divorce.  However, two cases were recently heard by the Texas Supreme Court on this issue. No ruling yet, but hopefully some guidance will be provided shortly on this issue.

Federal law is not clear on the issue of same sex marriage either, although it seems to be leaning in that direction. Case in point; Revenue Ruling 2013-17.  The IRS recently announced that the federal tax laws will be applied to same-sex marriages.

Same-sex couples in Texas have choices.  Co-habitation agreements can be drafted which attempt to delineate the obligations of each party much like a regular marriage although within the confines of a contractual relationship.  Beneficiaries in wills, burial agents, medical directives and the like can be addressed in co-habitation agreements as well.

If you are involved in a same sex relationship, give us a call.  We have the experience and knowledge to help with the challenges you face.