LGBT Estate Planning in Texas

LGBT Estate Planning: Legal planning for LGBT families in Texas

Great things are happening on the equality front this year. President Obama is the first sitting U.S. President  to support marriage equality.  Earlier this year, the United States Supreme Court found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. For more information on the DOMA decision, click here.

Thank goodness for movement in other states and the federal government. If the decision’s left up to Texas — well, let’s face it, not much would happen any time soon. And yet, there is no need to wait for Texas to act to protect your family. In spite of Texas’ discriminatory policies, there are legal measures available that offer same-sex couples some protections for their families.

The Benefits of Marriage

The marital relationship creates an assumption of a shared life together. With marriage the government assumes, among other things, shared property and a shared investment in each other’s well being. DOMA excludes certain couples from over 1,100 federal rights and protections that are available to married heterosexual couples. There are also numerous state benefits available to married couples that same-sex couples cannot access because they cannot marry in Texas. These benefits include inheritance rights and the ability to be involved in and informed about the care of one’s partner. Even though you cannot marry your partner in Texas, there are ways to approximate some of the important protections that would otherwise automatically come with marriage.

A Last Will and Testament: Protecting Your Shared Property

Without a Will, the State of Texas determines who will receive your property when you die. Thus, if you do not have a Will, your assets will be distributed to your next of kin rather than to the beneficiaries of your choice. This means that if you or your partner pass away, the surviving partner may no longer be able to access the other person’s property. Even if your partner has lived in your house for thirty years, state law may not recognize her right to your property unless you make your wishes clear in a valid Will. This is also true for other property in your name, such as your bank account, your automobile, and your personal belongings.

A well-drafted Will enables you to designate exactly who you wish to receive your property upon your death.  If you and your partner share property of any kind, creating a Will  better ensures that your property will be distributed to your partner and your children.

Powers of Attorney and HIPAA Authorization: Protecting Each Other

The durable and medical powers of attorney allow you to plan for illness or incapacity. Because state law does not recognize your relationship, if you are hospitalized, your partner may be left out in the cold. Whether your partner is informed about your health situation, has input into your care, or can visit you in the hospital will be left to your doctor and your biological family. A medical power of attorney allows you to designate who you would like to make health care decisions on your behalf in case of your illness or incapacity. Drafting a medical power of attorney together with a HIPAA authorization will ensure that your partner can access information regarding your health and make decisions on your behalf in case of your incapacity.

The durable power of attorney serves a similar function but with respect to your finances. This document allows you to designate an individual to manage your finances and property in case of your incapacity.

Designation of Guardian in Advance of Need: Protecting Your Choices

A Designation of Guardian can be used in two ways: to designate a guardian for yourself should you become incapacitated or to designate a guardian for your child. If a guardian is appointed on your behalf, your appointments made in your powers of attorney may no longer be valid. Thus, it is important to choose a guardian in advance. More information on the Designation of Guardian in Advance of Need can be found here.

The above items outline a basic estate plan. Depending on your situation, there are numerous additional legal options available to address your needs. For instance, if you have substantial assets, it may be to your advantage to create a plan that minimizes the impact of estate or gift taxes. If you anticipate that a family member may challenge your Will, there are ways to transfer your property without a Will. For specific guidance about how you and your partner should structure your estate plan to fit your circumstances, feel free to contact me.

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