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Lisa Galvan Law, PLLC Blog

Saturday, June 27, 2015

Estate Planning For Same-Sex Couples After Obergefell v. Hodges

Same sex marriage is now a constitutional right in Texas and throughout the country. So says the United States Supreme Court in its ruling of Obergefell v. Hodges. The Court held 5-4 that same-sex married couples are entitled to equal protection under the laws, and that their marriages must be recognized nationwide.  

What does this mean for same-sex couples here in San Antonio and throughout the state? For starters, it means that estate planning will be a whole lot easier once they obtain a legal marriage license.

Here are just a few ways that equal protections will impact married same-sex couples:

Same-Sex Partners Will No Longer Be Left Out of Intestate Succession

If you die without having made a will, the state distributes your property according to intestate succession laws. This is never a good outcome, but it is even worse for same-sex couples who, until now, were not legally recognized as married in Texas. Intestate succession laws distribute property among legal family members, including spouses, children, and other relatives. Because same-sex couples could not wed in Texas, intestate succession would leave them with no right to inherit their partner’s property.

That changes with the Supreme Court’s recent ruling. Married same-sex couples in Texas now have equal rights to all married couples in intestate succession laws.

State Laws Banning Same-Sex Marriage Are Effectively Invalidated

Same-sex couples will now enjoy all state tax benefits and other spousal benefits that other couples enjoy, including: 

  • Adoption or child custody proceedings, even in states that previously did not recognize two persons of the same gender as a child's parents; 
  • Divorce proceedings, if necessary, now that states must recognize the validity of the marriage wherever solemnized; 
  • Spousal priority in matters concerning an incapacitated spouse's care, or recognition in the event guardianship or conservatorship proceedings are necessary; 
  • Spousal survivorship rights under state pension or other retirement benefits, even in estates that previously did not recognize same-sex marriage; 
  • Spousal identity or priority in the vent will or trust proceedings are contested after death; 
  • The ability to file taxes jointly as a married couple; 
  • Spousal privilege in criminal proceedings where a spouse is a defendant; 
  • Any other spousal contract right where the contract is construed under Texas law. 

Couples Should Absolutely Still Proactively Plan

Just because Texas recognizes same-sex marriage doesn't mean couples should not take control of their will and trust planning, and clearly set for their wishes in enforceable legal documents. All of the good reasons to plan apply just as much to same-sex married couples as opposite-sex married couples:

  • Proactively expressing their wishes concerning their medical care during periods of incapacity (through powers of attorney); 
  • Structuring the distribution of their property - ideally in protective trusts - for the benefit of their surviving spouse and children after their death; 
  • Establishing trusts to preserve privacy, and to avoid the delay and expense of guardianship or probate proceedings during incapacity and after death; 
  • Providing for family members other than a spouse or child through their estate plans. 

While same-sex married couples are now entitled to equal protection under the laws of every state, the efficacy of those laws in ensuring dignity in disability and death, and orderly and structured distribution of property after death is very limited for all couples. Families should always take control of their planning and leave as little to state law interpretation as possible. Lisa Galvan Law provides a lifetime of estate planning services to couples in San Antonio and throughout Texas. Whether you are recently married or simply want to update your existing documents, call today at 210-820-2667 to set up a meeting with an experienced San Antonio estate planning lawyer.




Lisa Galvan Law, PLLC is located in San Antonio, Texas and serves the following surrounding counties: Bexar County, Medina County, Comal County, Wilson County, Atacosa County, and Kendall County.



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| Phone: (210) 820-2667

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