By now the dust is starting to settle from the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges, also known as the “gay marriage case.” Regardless of individual feelings or political leanings, the reality is that now and for the foreseeable future, same-sex marriage is protected as a Constitutional right and is legal in Texas. In fact, many Texas county clerks, including the County Clerk of Grayson County, are issuing marriage licenses to same-sex couples.
In the realm of estate planning, this case will result in a dramatic shift in interpretation of the laws relating to inheritance and separate/community property. The Texas Estates Code, for example, defines a marital partner as a “spouse”: presumably, Texas courts will now interpret that term to include a spouse of the same sex. In considering their own estate plans, same-sex couples, with or without children, now need to consider many aspects of estate planning which were previously only relevant to opposite-sex married couples in Texas, including but not limited to the following:
1. The laws of intestacy (inheritance rights of a family from a person dying without a Will) and the rights of inheritance from the other spouse;
2. The laws relating to separate property and community property, and the commingling of assets with the other spouse;
3. The laws relating to homestead and survivorship rights of a surviving spouse;
4. Rights of survivorship in community property;
5. Pre- and Post-Nuptial Agreements;
6. Death benefits and survivor benefits;
7. Priority rights in guardianship proceedings and other legal proceedings.
Of course, the right to pass on property to a same-sex partner through a Will, trust, or other estate planning device cannot be infringed, and a properly-drafted Will or Trust can resolve many of the issues facing opposite- and same-sex couples alike. But same-sex couples who are married in another state and seek to have that marriage recognized in Texas, or couples who intend to get married in Texas, should consider the factors outlined above and consult with an estate planning attorney to resolve any pre- and post-marriage issues that, as of the Supreme Court’s decision in Obergefell v. Hodges, now affect them and their spouse.