The triumph of same-sex marriage is relatively recent, and brings with it both the respect of a civil right and, to some extent, a continuing measure of uncertainty.
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 was one of those states that did not recognize the marriage between same-sex couples.
Same-sex marriage was formally recognized in 2015 by the US Supreme Court in Obergefell v. Hodges, where the court held that state bans on same-sex marriage were unconstitutional, violating the Fourteenth Amendment’s Due Process and Equal Protection Clauses. This landmark ruling recognized what the general public refers to as the constitutional right to marry.
These rights touch all parts of the married couple’s lives: medical and retirement benefits, income tax filings, and in litigation. There are evidentiary privileges preventing testimony by one spouse against the other.
A myriad of family law issues arise stemming from the application of common law marriage (marriage without formalities). Common law marriages are recognized in Texas under certain circumstances, but the actual date that the marriage began is generally unknown. Even in formal marriages prior to the Obergefell decision, there can be a question as to the marriage date if a couple was married outside of Texas at a time when Texas didn’t recognize legal same-sex marriage. And a subsequent formal marriage does not “trump” the beginning date of a common law marriage.
Related to the marriage date is the question of what property in the family is considered community property, which in Texas is presumed to be all property acquired during marriage. If the marriage’s origination date is in question, then there will likely be confusion as to what property was acquired during the marriage. And that issue affects division of property and alimony payments in a divorce.
Same-sex couples whose marriage has spanned these uncertain times could file a Declaration and Registration of Informal Marriage which establishes a date “on or about” which the marriage began. In addition, they could more thoroughly address these issues in a spousal community property agreement or post-marital agreement which clearly identifies community and separate property of the spouses.
A clear spousal preference exists in intestacy laws (inheritance rights if someone dies without a will), medical decisions, burial agents, and guardianship issues. Also, the marital deduction for estate tax purposes now benefits same-sex couples. That’s great news for the same-sex couple. Just like opposite-sex couples, no couple should rely on statutory provisions or courts for the division of their estate, declaration of guardians for their children, or health and incapacity decisions. All married couples need estate planning and ancillary health documents, and same-sex couples may now need or desire to look into available spousal government benefits for qualifying beneficiaries.
Hammerle Finley Law Firm offers services in Estate Planning, Government Benefits, Guardianship, Family Law, and other legal areas with your unique circumstances in mind. If you would like to discuss your will, an incapacitated loved one, or any issue affecting your family, please contact us to schedule a consultation.