A Brief Overview of the Options Available to Same-Sex Couples in Texas

Until June 26th, 2015, same-sex marriage was not legally recognized in the United States. This meant that the LGBT community could not freely enjoy certain legal rights that were so readily available to their straight counterparts. This included, among others, access to vital estate planning tools for married couples. Things have changed since then, thanks to a historical decision by the Supreme Court to lift all state bans on same-sex marriage. Let’s take a look at some of the options available to same-sex couples in Texas today.

1.  Last Will And Testament

A Will is a vital part of estate planning, yet statistics show that almost 70% of Americans die without one. If you are a same-sex couple in Texas, you can create a Will to determine how your assets should be distributed upon your death. It is also advisable to set up a Trust while you are at it, especially if you think there might be a struggle over your property when you die. A Trust is highly recommended because it can be established and funded during your lifetime. It is also less likely to become public after death, hence reducing the chances of contesting it.

2.  Medical Documents

Same-sex couples usually have a harder time enforcing medical decisions for partners who are incapacitated as compared to heterosexual spouses. As such, it is particularly important to document your wishes if you are a same-sex couple. There are several ways you can do this:

  • A HIPAA release form – this allows specific individuals to access your medical information
  • A medical power of attorney – this authorizes someone to make medical decisions for you if your are declared unstable or incapable of making those decisions for yourself.
  • A health directive (e.g. a do-not-resuscitate or a living Will) – this contains your preferences about medical treatment if you are unable to communicate

3.  Planning for Kids

Naturally, assets are passed on to the next of kin when a parent dies. If you are a same-sex couple, however, you may want to include adoption in your estate planning documents to ensure everything ends up with the children. This is especially important if it is a second-parent adoption where only one of the parents is biologically related to the child.

A second-parent adoption is similar to a step-parent adoption. It allows the spouse of the child’s biological parent to have child custody as well, thus making him or her a legal guardian. The idea is to ensure that your assets are transferred directly to your children as opposed to other family members such as aunts or uncles. If you do not have an estate plan and there is no legal determination of the next of kin, the child may not receive anything.

4.  The Unlimited Marital Deduction and Portability

Today, same-sex couples in Texas can transfer assets from a deceased spouse to a surviving one without paying federal estate taxes thanks to the unlimited marital deduction. This can translate to big savings especially if you have a good net worth. Same-sex couples are also exempt from the annual gift tax, which is required of every taxpayer in the country.

If you are looking for a trusted, unbiased law firm for your estate planning needs, the Amsberry Law Firm has got you covered. We have a team of highly trained attorneys that deal with different types of family law issues on a daily basis. Contact us anytime at (210) 354-2244.

Written by Amsberry Law Firm

Amsberry Law Firm

Mr. Amsberry is board-certified in family and labor and employment law by the Texas Board of Legal Specialization. He is also active in family law, estate and elder law, and business law. He is a proven litigator who has argued before the United States 5th Circuit Court of Appeals and earned favorable outcomes in complex, precedent-setting employment and civil rights cases. He served as a reservist assistant judge advocate general in the U.S. Army and is a sought-after lecturer and speaker on a range of legal issues.

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