Still Not Married: Estate Planning for Same-Sex Couples in Texas

The legal landscape for same-sex marriage changes almost weekly, as more states recognize such marriage and federal law extends fundamental rights to all legal marriage, whether opposite-sex or same-sex. Texas, however, continues to resist such recognition and both the Texas Constitution and Texas Family Code apply only to couples legally married in Texas.

That means that same-sex couples — even those who legally married in other states — must still take care to tailor estate planning documents in a way that ensures protection and proper disposition of your estate. While we have covered the principles in previous Modern Families posts, this month we take a new look at estate planning for same-sex couples with a view to six key areas.

Wills

As the foundational document of any estate plan, a will lets you direct your assets to the person or persons you wish. Texas has very strict intestacy laws that provide no protection whatsoever to your same-sex partner. Each member of a same-sex couple must have a will in order for the other partner to receive anything. In the eyes of the state, a same-sex couple is no more than two single individuals with no claim to the estate of the other. Keep in mind, too, that if your children are not your biological or adopted children, Texas does not recognize them as your family.

Powers of attorney

Financial durable powers of attorney and medical powers of attorney allow another person to make decisions on your behalf. Without such documentation, your partner — who probably knows what you want better than anyone — cannot assist in making decisions about your health or business matters.

Directives to physicians

This document, sometimes called a living will, expressly specifies directions for resuscitation and life support. Although it applies to all individuals, regardless of status, having the directive in place will allow medical personnel to enforce the wishes of the executor without challenge.

Disposition of remains

Again, this is the opportunity to outline your wishes for what will happen to your body after death and who will be in charge of the process. Without your specific documentation, your partner will have no say and the court will assign responsibility.

Cohabitation agreements

These documents set apart estate planning for same-sex and unmarried couples from estate planning for married couples. Similar to prenuptial agreements, a cohabitation agreement specifies how the partners divide their assets and debts in case of a breakup or other division of the joint estate. It specifies what percentage of interest each party holds in accounts, possessions, real estate, and other items. In some cases, it specifies who gets pets or other items with personal attachment. The advantage of a cohabitation agreement is that it allows the partners to describe their relationship in specific terms. In some cases, it can delineate the roles and obligations of each partner. Such documentation can be crucial in a situation where one or both partners’ families do not accept the spousal nature of the relationship.

Retirement plans and life insurance policies

Although these documents generally fall into the realm of financial advisers rather than attorneys, designating beneficiaries is a definite legal necessity. Otherwise, proceeds from the policy become part of the estate. Updating beneficiaries is a simple process that is essential to making your wishes a reality.

If you do not have all of these documents in place or need to make sure your documentation reflects your current wishes and relationships, call us and we’ll help you through the process.

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