Same-sex marriage has been legal nationwide since 2015, when the Supreme Court decided Obergefell v. Hodges. And in 2022, Congress added another layer of protection by passing the Respect for Marriage Act , which repealed the Defense of Marriage Act and requires the federal government and all states to recognize valid same-sex marriages.
These legal changes were historic. They mean that married same-sex couples now have the same rights as any other married couple when it comes to inheritance, taxes, Social Security benefits, and healthcare decisions.
But legal equality doesn’t mean estate planning is no longer important. In fact, for many same-sex couples, thoughtful estate planning matters as much as ever.
Why Estate Planning Still Matters for Same Sex Couples
Every married couple, regardless of sexual orientation, benefits from having an estate plan. A Will ensures your property goes where you want it to go. Powers of Attorney make sure the right person can step in if you become incapacitated. Healthcare directives give your spouse the authority to make medical decisions on your behalf.
Without these documents, your family is left relying on state law. And state law doesn’t always produce the result you’d expect or want.
For same-sex couples, there are additional reasons to be proactive.
Protecting Your Spouse from Family Disputes
Some same-sex couples have strained or severed relationships with their families of origin. If a parent or sibling does not accept the relationship, that tension can create problems after a death or during a medical crisis.
Under Texas intestacy law, if you die without a Will, your spouse will inherit a share of your estate, but so might your parents or siblings depending on whether you have children. If your relationship with your biological family is difficult, you may want to ensure your spouse receives your entire estate. A Will makes that possible.
The same principle applies to healthcare decisions. If you’re incapacitated and don’t have a Medical Power of Attorney, Texas law provides a list of people who can make decisions for you. Your spouse is at the top of that list. But having a signed document in place removes any ambiguity and can prevent disputes if family members disagree.
Parental Rights and Second-Parent Adoption
For same-sex couples with children, estate planning takes on added significance.
If both spouses are legal parents, whether through birth, adoption, or a court order establishing parentage, the surviving parent will typically have custody if one parent dies. But if only one spouse is a legal parent, the situation becomes more complicated. The non-legal parent may not automatically have custody rights, even if they have been raising the child from birth.
A second-parent adoption creates a clear legal relationship between the child and both parents. This relationship is recognized everywhere and provides the strongest protection. If adoption isn’t possible or hasn’t happened yet, naming your spouse as guardian in your Will is an important step to make your intentions clear.
Updating Your Beneficiary Designations after Marriage
Retirement accounts, life insurance policies, and bank accounts with payable-on-death designations pass directly to the named beneficiary. They don’t go through your Will.
This means outdated beneficiary designations can undermine even the most carefully drafted estate plan.
Same-sex couples who were together before 2015 may have named a parent, sibling, or former partner as a beneficiary during a time when they couldn’t legally marry. If those designations were never updated, the wrong person could inherit.
Take the time to review your accounts and make sure your beneficiaries reflect your current wishes.
Update Older Estate Planning Documents
If you created estate planning documents before Obergefell, they may contain language that no longer fits your situation. Documents drafted when marriage wasn’t an option often used terms like “partner” or “companion” rather than “spouse.” They may have included extra provisions to compensate for the lack of legal recognition.
Now that you can marry, your documents should reflect that status. A spouse has certain rights under Texas law that a partner does not. Updating your documents ensures you’re taking full advantage of the protections available to you.
Medical Power of Attorney and Healthcare Directives
Even with marriage equality, having the right healthcare documents in place is critical.
A Medical Power of Attorney allows you to name your spouse as your agent for healthcare decisions. A Directive to Physicians lets you state your wishes about end-of-life care. A HIPAA Authorization ensures your spouse can access your medical records.
These documents can prevent delays, confusion, and conflict during a medical emergency. They also provide clear legal authority that healthcare providers will recognize.
A Word About Legal Uncertainty
Some couples worry about the future of marriage equality. After the Supreme Court overturned Roe v. Wade in 2022, Justice Clarence Thomas suggested in a concurring opinion that the Court should reconsider other decisions, including Obergefell.
No other justice joined that opinion, and the Respect for Marriage Act provides a federal backstop. If Obergefell were ever overturned, the federal government would still be required to recognize marriages validly performed in states that allow them, and other states would be required to respect those marriages as well.
Still, having comprehensive estate planning documents in place gives you an extra layer of protection. Your Will, your powers of attorney, and your healthcare directives don’t depend on marriage for their validity. They work regardless of what happens in the courts.
Taking the Next Step
Marriage equality was a hard-won victory. It brought same-sex couples into the same legal framework that has always been available to opposite-sex couples.
But legal recognition is just the starting point. Estate planning is how you make sure that recognition translates into real protection for yourself, your spouse, and your children.
If you haven’t reviewed your estate plan recently, or if you created documents before you were married, now is a good time to take another look. An experienced estate planning attorney can help you ensure your documents reflect your current life and your wishes for the future.
Frequently Asked Questions
- Do same-sex couples need estate planning if they’re legally married? Yes. While marriage provides important legal protections, an estate plan ensures your wishes are followed, especially if family dynamics are complicated or you have children.
- What is a second-parent adoption and do we need one? A second-parent adoption legally establishes both spouses as parents of a child. It’s especially important when only one spouse is the biological parent, because it creates a legal relationship recognized in all 50 states.
- Should we update estate plans created before 2015? Yes. Documents created before Obergefell may use outdated language or include workarounds that are no longer necessary. Updating them ensures you’re taking full advantage of your legal rights as a married couple.
- Does the Respect for Marriage Act protect our marriage? The Respect for Marriage Act requires the federal government and all states to recognize valid same-sex marriages. It provides an additional layer of protection even if future court decisions change.
