TBJ FEBRUARY 2023

Estate Planning and Probate
for Same-Sex Couples

Practical suggestions for working
with LGBTQ clients.

Written by Elizabeth Brenner

It’s difficult to overstate the impact of Obergefell v. Hodges, the 2015 Supreme Court decision requiring states to extend equal access to marriage to same-sex couples. The landmark ruling brought Texas same-sex couples vital, yet long denied, relationship protections. Before Obergefell, couples with decades-long lives together were nonetheless legal strangers under Texas law. Planning was absolutely essential to provide the couple with some semblance of protections available to opposite-sex couples. Couples without the money or the knowledge of the need for such planning could be struck with the impact of this inequity in the midst of the most dire of circumstances: losing their homes to relatives of a deceased partner or cut off from contact with a long-term partner following a sudden onset of a serious illness due to interfering family with legal priority to serve as guardian or agent. And yet, prior to Obergefell, Texas couples could only do so much to protect their family without marriage recognition. Thousands of protections available to other couples—from homestead protections to Social Security survivor benefits—remained off limits without marriage.¹

Even though marriage equality is now the law of the land, there remain issues unique to planning for same-sex couples. Of course, the standard package of documents for an individual or couple—wills, powers of attorney, etc.—are equally necessary for any couple. The purpose of this article is to cover other areas estate planning and probate practitioners should consider when working with clients in a same-sex relationship.

1. Retroactivity and Common-Law Marriage
Texas is one of few states that recognize common-law marriage. For a common-law marriage to be valid, the couple must (1) agree to be married; (2) represent themselves as married to others; and (3) live together as a married couple in Texas.² At least two Texas courts have found that a common-law marriage between same-sex couples could pre-date the Obergefell ruling at a time when Texas prohibited their marriage.³

Therefore, it is important to determine the clients’ marital status and date of marriage. For clients in which the date of marriage is unclear or who are potentially in a common-law marriage, it’s important to discuss the potential impact on characterization and division of property in the event of death or divorce. The clients may want to make divisions of property and debt clear through the use of marital agreements, or if the couple does not intend to be married, a domestic partnership agreement that specifies their intention not to be married.

The existence of common-law marriage, retroactivity, and Texas’ community property regime provides the possibility to remedy some of the damage of past inequality. Same-sex couples who shared lives together much like any married couple for years prior to 2015, but without the benefits of legal recognition, may find some recourse in our state’s informal marriage and community property laws. The combination makes it possible to reach back in time to create a same-sex marriage prior to the 2015 Supreme Court ruling.⁴

While both individuals are still alive, some counties will allow them to backdate their marriage through an informal declaration of marriage.⁵

2. Civil Unions and Domestic Partnerships
Prior to Obergefell, a number of states offered domestic partnerships or civil unions to same-sex couples as a way to cobble together some relationship protections, though they were far inferior to protections that come with marriage. These entities had legally binding significance, offering various degrees of state benefits and protections. Domestic partnerships and civil unions are not recognized by Texas or the federal government and offer no benefits or protections of marriage.⁶ Following the passage of marriage equality, at least six states automatically converted a civil union or domestic partnership to marriage, whether or not the couple intended to be married.⁷

Before the availability of marriage in Texas, many same-sex couples left the state to marry or to obtain a civil union or domestic partnership. It is distinctly possible that an individual split with a past partner without dissolving the civil union or domestic partnership. Depending on the state, it is also possible that this undissolved civil union or domestic partnership was automatically converted to marriage. Any undissolved entities create a host of potential legal entanglements, including division of property with a former partner or spouse and, if the client remarried, a potentially void subsequent marriage. The degree of any ongoing entanglements will depend on the benefits conferred by the state.⁸

As a result, it is important to determine if the client has any previous domestic partnerships or civil unions, the place in which it occurred, and the date of dissolution, if any. If the client did not dissolve the civil union or domestic partnership, the client will need to consult with an attorney in the applicable state.

3. Planning for Couples With Children
Attorneys assisting clients with children should always ensure that both parents—biological and non-biological—have a legally recognized parent-child relationship, including through adoption or parentage orders, as appropriate.

4. Name and Gender Marker Changes
When representing transgender clients or clients with transgender family members, attorneys must be cognizant of the use of appropriate name, gender marker, and pronouns in legal documents. For example, to avoid the potential for probate administration issues, clients with transgender family members should ensure estate planning documents reflect the appropriate post-transition name and gender marker identification. The same is true for clients who transition following execution of estate planning documents. These documents should be updated to reflect appropriate post-transition names and gender identity.

5. Post-Dobbs Anxiety
Many fear that the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which reversed decades of constitutional protection of access to abortion, will impact the rights of LGBTQ people. The concern arises from the majority opinion’s arguable narrowing of the scope of substantive due process on which LGBTQ equality rulings such as Obergefell v. Hodges and Lawrence v. Texas were based. Moreover, in a sole concurrence, Justice Clarence Thomas opined that Lawrence v. Texas and Obergefell v. Hodges are “demonstrably erroneous” and should be overruled.⁹ The Lawrence and Obergefell rulings block Texas from enforcing laws on the books which, respectively, criminalize consensual non-heterosexual sex¹⁰ and prohibit same-sex marriage.¹¹

Overruling Obergefell would wreak legal havoc on married same-sex couples nationwide. In Texas, among numerous other legal complications, a reversal could impact the estate planning and probate realm. For example, it could nullify the intent of existing estate plans for same-sex couples. While unconstitutional and unenforceable, Texas Constitution and statutory provisions “void” same-sex marriages. If Obergefell is overturned, these provisions would no longer be unconstitutional. Per the Texas Estates Code, if a marriage is dissolved due to a declaration that the marriage is void, all provisions in a will in favor of a spouse and each relative of the spouse who is not a relative of the testator, including fiduciary appointments, will be considered as if the spouse predeceased the individual.¹² This is by no means confined to a will; it also applies to various other key aspects of an estate plan, including the durable power of attorney,¹³ medical power of attorney,¹⁴ multi-party accounts,¹⁵ and appointment for disposition of remains.¹⁶

However, there are good reasons to believe a future Supreme Court would not apply Dobbs to same-sex relationships, including that the majority opinion says so: the ruling states “unequivocally” it is not intended to apply to same-sex relationships.¹⁷ In a 2017 decision joined by Chief Justice John Roberts, the court reaffirmed the Obergefell holding that states must extend equal rights and benefits to same-sex couples.¹⁸ Moreover, an overwhelming majority of the country—71%—support same-sex marriage.¹⁹ On December 13, 2022, President Joe Biden signed into law the Respect for Marriage Act.²⁰ The law provides federal recognition of same-sex marriages and requires states to grant full faith and credit to same-sex marriages performed out of state. Thus, in the unlikely event that Justice Thomas had his way, Texas and other states would be forced to grant full legal recognition to same-sex marriages performed out of state.

As in any case, a client’s estate plan should evolve with changing laws and life circumstances. Estate planning and probate practitioners who work with LGBTQ clients should familiarize themselves with these and other evolving issues in order to appropriately and comprehensively assist their clients. ^TBJ

ELIZABETH BRENNER
is an attorney with Burns Anderson Jury & Brenner in Austin, where she practices probate and trust litigation, probate administration, and guardianship law. She began her career in public interest work.

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