Estate Planning for Same-Sex Couples

For many years, the Defense of Marriage Act (“DOMA”) prevented the federal government from recognizing marriages of same-sex couples. As a result, same-sex couples could not take advantage of federal laws, which barred them from receiving federal marriage benefits.

United States vs. Windsor

That changed on June 26, 2013. In United States v. Windsor, the Supreme Court of the United Stated ruled that Section 3 of the Defense of Marriage Act (“DOMA”), which provided that the word “spouse” referred only to a person of the opposite sex who is a husband or wife, was unconstitutional.

As a result of that decision, same-sex couples who were legally married and living in states that recognized their union became entitled to the same federal rights and benefits as heterosexual spouses, including more than 1,000 federal benefits such as Social Security. Based on that decision, the IRS recognized same-sex marriages for federal tax purposes, regardless of whether same-sex spouses moved to a state that did not recognize the validity of same-sex marriage.

However, the Windsor decision did not strike down Section 2 of DOMA, which allowed states to deny recognition of same-sex marriages performed in other states. What this meant is that same-sex spouses who moved to Texas would not treated as spouses for such things as inheritance through intestacy, constitutional homestead rights, and priority rights concerning an incapacitated spouse’s care.

Obergefell vs. Hodges

On June 26, 2015 in Obergefell vs. Hodges, the Supreme Court held by the narrowest of margins that the 14^th Amendment guarantees same-sex couples the right to get married and that their marriages must be recognized nationwide. As a result, same-sex couples in Texas will be afforded the same rights heterosexual spouses enjoy, including the right to marry and to take advantage of tax, estate planning, and employee benefits afforded to married couples.

Estate Planning is Still Necessary

The fact that Texas now recognizes same-sex marriages and the intestacy rules apply as equally to same-sex couples as they do to heterosexual couples does not mean that estate planning not necessary.

Estate planning is an important part of making sure your wishes are followed and your family is protected in the case of your incapacity or death. Without estate planning, you forfeit the opportunity to make many important decisions, such as:

1. Deciding who will receive your assets when you die. Without a will, your assets will be distributed according to a statutory formula, which may conflict with your wishes.
2. Deciding who should serve as guardians for your minor children if you and your spouse both die.
3. Designating a guardian for your children in the event you are incapacitated but have not died.
4. Deciding how your assets will be distributed to you minor children when you die.
5. Deciding who will manage the assets you leave behind for your children.
6. Deciding when your children will have access to the assets you leave them.
7. Deciding who will handle certain specified business, financial or legal transactions on your behalf if you are unable to manage your own affairs, such as if you become incapacitated.
8. Deciding who will make medical decisions for you if you are incapacitated and unable to make those decisions for yourself.
9. Deciding whether to authorize a trusted friend or family member to receive access to protected health care information if you are incapacitated.
10. Deciding whether you would like your physicians to use artificial methods to extend your life in the event you are diagnosed with a terminal or irreversible condition.

Whether you are single or married, if you want control over these important decisions, you need an estate plan.