Frequently Asked Questions about Marriage Equality in Texas

On Friday June 26, the United States Supreme Court ruled that a state’s prohibition of marriage among same-sex couples violates the United States Constitution. The ruling found prohibitions on same-sex marriage to violate principles of equal protection and the fundamental right to marriage.

While the decision marks a monumental step forward for equality, it by no means resolves all legal issues related to same-sex families. In fact, because same-sex marriage is relatively new to the country and brand new to Texas, there are still many legal unknowns.

I expect you have numerous questions about the impact of the ruling on your rights and your family. Below are a few answers to some common questions about marriage equality in Texas. If you have questions not addressed below, please feel free to contact me.

Can I now marry in Texas?

Yes, though marriage equality may take time to implement in some counties– whether due to resistance to the Supreme Court ruling by state or county officials, or simple lack of preparedness.

I’ve already married out of state. Will Texas automatically recognize my marriage?

Yes, if you are married out of state, you are legally married under state law. Thus, you are entitled to the same rights, responsibilities, and benefits of marriage in Texas and under federal law as an opposite sex couple.

Do I need to change my will or powers of attorney now that Texas recognizes my marriage?

Your will and other documents are still valid regardless of your marital status. However, it is important that you review your estate plan at least every five years to make certain it is consistent with your goals. As your life evolves and changes, so may your estate planning goals.

Major life changes such as birth or adoption of a child, changes in assets, inheritance, or divorce require a reevaluation of your estate plan. Other reasons you may wish to update your estate plan include desired changes to an executor, beneficiary, or agent in your powers of attorney.

Are wills and powers of attorney still necessary if I’m legally married in Texas?

Emphatically yes. Estate planning is essential to ensuring your family is protected in your absence. Below are just a few of many reasons estate planning is still necessary:

  • If you have children, it’s necessary to appoint guardians for your minor children and trustees to manage their property. In absence of such planning, a court may make such appointments;
  • Without a will, the process of transferring property upon death can be costly, cumbersome, and time consuming;
  • While a spouse can make medical decisions on your behalf if you are incapacitated, a durable power of attorney is necessary for your spouse to manage all of your finances if you are unable to do so due to incapacity or other reason;
  • A will is necessary to control disposition of your assets. Without a will, state law decides who inherits your property.

My partner and I are not presently married. What are the legal benefits of marrying?

Both federal and state laws confer benefits, rights, and protections upon married couples. Just a few examples of these protections include the following:

  • Automatic inheritance from a spouse;
  • The right to make health care decisions for your spouse;
  • Homestead protections;
  • Protection of property rights upon dissolution of the relationship;
  • Federal tax benefits including the ability to make unlimited gifts to your spouse without incurring a gift tax, and exemption from estate tax for property that passes to a spouse. However, depending on your income and your spouse’s income, marriage may increase your income taxes;
  • If you marry a foreign national, you may obtain a visa for your spouse;
  • Spousal benefits such as health insurance and FMLA.

While having an estate plan is important for everyone, if you opt not to marry, it is even more crucial to have properly drafted wills, powers of attorney, etc. in order to obtain necessary protections for you and your family.

If my partner and I are now legally married must the non-birth parent still adopt our child?

Yes. In order to protect the parental rights of the non-biological parent, it is still necessary for her to adopt the child even if the couple is married when the child is conceived. A May 2015 New York decision illustrates the ongoing importance of second-parent adoption:

A married lesbian couple had a child together during the marriage.  The non-biological mom did not adopt the child. The couple later broke up, and the non-biological mother filed for joint custody arguing that she should be the presumed parent since she was married to the biological mother at the time of birth.

In New York, as in Texas, there is a presumption of parentage. This means that if a child is born to a mother who is married, it is presumed the spouse is also a parent. However, in this case, the New York court failed to apply this presumption explaining that, unlike in a heterosexual marriage, it’s impossible for the non-birth mother to be the child’s biological parent.

While this issue has obviously not yet been addressed in Texas, this case is a prime example of the complications that could arise if the non-biological parent does not adopt.

Questions? Feel free to contact me.

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