The Importance of Estate Planning for Same-Sex Couples in Texas

Estate planning is an essential consideration for all individuals and families in Texas, regardless of their age or financial situation. Effective estate planning ensures the distribution of your assets according to your wishes, minimizes taxes, and protects your loved ones after your passing. Since 2015, when gay marriage was legalized in Texas, estate planning for same-sex couples has presented unique challenges in the state.

Due to the somewhat complex nature of estate planning for same-sex couples, affected individuals need legal assistance from an attorney who not only possesses expertise but also understands the specific nuances of their situation. At the Law Office of Bryan Fagan, we acknowledge that each situation is unique, and we are dedicated to guiding you through every step of the process.

The legal status of same-sex marriage in Texas has significantly changed in recent years. Like many states, Texas has had a complex and often controversial history when it comes to recognizing same-sex relationships. Texas has a long history of opposition to same-sex marriage. In 2005, the state passed a constitutional amendment banning same-sex marriage and prohibiting the recognition of any legal status “identical or similar to marriage.” This ban remained in place until the Supreme Court’s landmark decision in Obergefell v. Hodges in 2015, which legalized same-sex marriage nationwide.

Before the legalization of same-sex marriage, some same-sex couples in Texas sought to establish legal recognition of their relationships through domestic partnerships or civil unions. However, Texas did not recognize any form of legal recognition for same-sex couples, which made it difficult for these couples to access important legal rights and protections, such as inheritance rights, healthcare decision-making, and spousal benefits.

Since the Supreme Court’s decision in Obergefell, same-sex couples in Texas have been able to legally marry and enjoy many of the same legal rights and protections as opposite-sex couples. However, some challenges remain for same-sex couples in the state. For example, Texas law still allows for individuals and businesses to discriminate against same-sex couples on the basis of religious beliefs. This means that same-sex couples may face challenges when it comes to accessing services, such as wedding vendors or adoption agencies, that are necessary for their relationships.

In addition, some elected officials in Texas have continued to push back against the legalization of same-sex marriage. For example, in 2015, Texas Attorney General Ken Paxton issued a statement telling county clerks that they could refuse to issue marriage licenses to same-sex couples if they had religious objections to same-sex marriage. Despite these challenges, same-sex couples in Texas have the same legal rights and protections as opposite-sex couples when it comes to marriage. This includes the right to marry, the right to access spousal benefits, and the right to make important healthcare and end-of-life decisions for their partner.

Estate Planning Documents for Same-Sex Couples in Texas

One of the most important estate planning documents for any couple is a will. A will is a legal document that outlines how a person’s assets should be distributed after their death. For same-sex couples in Texas, it is especially important to have a will in place, as Texas does not recognize common-law marriages. This means that if one partner dies without a will, the surviving partner will not automatically inherit any assets or property.

In addition to a will, same-sex couples in Texas should also consider creating other estate planning documents, such as:

  1. Trusts

A trust is a legal arrangement in which a person (the trustor) transfers ownership of their assets to a trustee, who manages the assets on behalf of a beneficiary. Same-sex couples may find trusts useful for protecting and distributing their assets according to their wishes. There are many different types of trusts, including revocable and irrevocable trusts. In a revocable trust, the trustor retains control over their assets and can make changes to the trust at any time.

In an irrevocable trust, the trustor gives up control over their assets, but may receive tax benefits and other advantages. Same-sex couples in Texas can create trusts to provide for each other and their dependents after their death. For example, a couple might create a trust to provide for their children’s education or to pay for their grandchildren’s expenses. Trusts serve the additional purposes of shielding assets from creditors and reducing tax liabilities.

  1. Power of Attorney

A power of attorney is a legal document that gives another person the authority to make decisions on your behalf if you become incapacitated. Same-sex couples in Texas should consider creating both a financial power of attorney and a medical power of attorney, so that their partner can make important decisions on their behalf if necessary. A financial power of attorney gives your partner the authority to manage your financial affairs, such as paying bills or making investment decisions, if you are unable to do so. A medical power of attorney grants your partner the authority to make healthcare decisions on your behalf in the event of your incapacitation.

  1. Advance Directives

Same-sex couples in Texas should designate their partner as their healthcare agent in their advance directive, a legal document that outlines end-of-life care preferences. This allows the partner to make crucial healthcare decisions in case of incapacitation. Advance directives can also specify preferences for life-sustaining treatment, like whether to remain on life support in a coma or vegetative state. With an advance directive, same-sex couples can ensure that their wishes are honored even if they are unable to communicate them directly.

Inheritance Rights for Same-Sex Couples in Texas

Inheritance rights are an important consideration for all individuals, regardless of their sexual orientation. However, same-sex couples in Texas may face unique legal challenges when it comes to inheritance. Texas’ intestacy statutes determine the default inheritance laws in the state. These laws dictate who will inherit a person’s property if they die without a will. Under Texas law, if a person dies without a will and without any children, their assets will generally go to their parents. If the parents are deceased, the assets will pass to the person’s siblings. If the person has no living relatives, the assets will go to the state of Texas.

Legally married same-sex couples in the state enjoy the same inheritance rights as opposite-sex couples. In such cases, if one spouse passes away, the other spouse typically inherits the deceased spouse’s property. However, unmarried same-sex couples may encounter hurdles regarding inheritance. If a couple isn’t married and one partner dies intestate, the surviving partner might not automatically inherit any assets. Since Texas law only recognizes legal spouses as heirs, unmarried same-sex partners face challenges. To address this, they should draft a will to designate asset distribution. Additionally, setting up a trust or other estate planning documents can safeguard assets and ensure desired distribution.

Importance of Estate Planning for Same-Sex Couples in Texas

Estate planning is an important process for anyone, regardless of their sexual orientation or gender identity. However, for same-sex couples in Texas, estate planning can be particularly crucial. Same-sex couples in Texas must prioritize estate planning because without a plan, the state’s intestacy laws dictate asset distribution after their passing. This means that if one partner dies without a will, the surviving partner may not automatically inherit anything, even if they have been together for years.

Additionally, without proper estate planning, same-sex couples may face challenges when it comes to accessing each other’s medical records, making medical decisions on behalf of their partner, and even attending to funeral arrangements. Another important consideration for same-sex couples in Texas is that they may face higher estate taxes if they do not plan carefully. Texas has no state estate tax, but the federal estate tax applies to estates worth more than $11.7 million as of 2021. Same-sex couples may have a combined estate worth more than this amount, which means they could be subject to a hefty tax bill if they do not take steps to reduce their taxable estate.

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