What to do when you can’t say “I do” — Protecting the rights of same-sex couples in Texas

The year 2013 was historic for individuals that identify as LGBT. When the Supreme Court declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, many same-sex couples saw a bright future for their right to be married legally.

In Texas and other states that still restrict marriage to one man and one woman, however, gay couples won’t have to don their sun shades anytime soon. True, the Department of Treasury and IRS have ruled that same-sex couples legally married in any state are considered married for federal tax purposes — even if they live in a state that doesn’t recognize the marriage. But the ruling does not protect the basic rights and privileges governed by state laws of same-sex couples in those states that do not recognize same-sex marriage. Protection in those states comes only from careful legal documentation. In the absence of such documents, rights and property revert to the biological family.

The start of a new year is an ideal time to review the documents that Texas same-sex couples need to protect their families in the event of a crisis.

  • Will — Make sure it reflects any changes in your life: financial ups or downs, children, property, trusts, etc.
  • Power of Attorney — Specify who makes decisions for you if you are unable to do so. The “power” can be limited or all encompassing, covering finances, property disposition, investments, bill paying, and more.
  • Medical Power of Attorney — More than “who cuts the cord,” the MPOA designates the person you want to make health care decisions on your behalf. Same-sex couples should also designate visitation rights and receipt of personal property.
  • HIPAA Release — This allows you to name non-family members to receive medical information and records.
  • Directive to Physicians — While the same information is covered in the MPOA, this document reaffirms your wishes.
  • Co-parenting Agreement — In lieu of a second-parent adoption, this document clearly explains the rights and responsibilities of each parent.
  • Cohabitation Agreement — Much like a pre-nuptial agreement, this document can outline division of property and bills, joint accounts, pets, and other elements of the partnership.

While having so many documents may seem like overkill, remember that the law in Texas does not presume a valid, recognized marital relationship. And even these documents don’t equal a legal marriage — married couples have hundreds of rights, simply by virtue of being married. That’s why consulting an attorney is crucial; together, you can determine what rights are most important to you and your spouse and wrap them in legal protection.

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