Marriage Equality in Texas?

With the beginning of the new year, comes the potential promise of marriage equality. On January 16, the United States Supreme Court decided it would hear appeals from the Sixth Circuit addressing the issue of marriage equality. Before the Supreme Court will be two issues: (1) whether states must allow same-sex couples to marry; and, if not, (2) whether states must recognize same-sex marriages performed in other states. The Supreme Court’s decision, likely at the end of June 2015, may finally resolve this issue for the country.

Thirty-six states now have marriage equality – more than double the number of states recognizing same-sex marriage last year at this time. Unfortunately, Texas is not one of these states. However, it’s possible Texas will have an answer before the Supreme Court issues its decision in June. Earlier this month, the Fifth Circuit Court of Appeals heard arguments from Texas, Louisiana, and Mississippi on the constitutionality of these states’ prohibition of marriage equality.

Marrying Out of State

Regardless of the outcome of these cases, the option remains for couples to marry out of state. Following the United States Supreme Court ruling in June of 2013, the federal government began recognizing same sex marriage for the purpose of certain federal benefits. Married same sex couples living in Texas are treated as any other married couple for the purpose of the following federal laws: federal taxes, including income tax, gift tax, and estate tax; immigration; military spousal benefits; and, if you are a federal employee, spousal benefits such as health insurance and FMLA. Whether marrying out of state is beneficial to you depends on your individual circumstances.

Planning Remains Important for LGBT Couples

If marriage equality does come to Texas, married same-sex couples will have many of the rights of opposite-sex couples in this state. These rights include homestead protections, the right to inherit from a spouse, medical decision-making ability for an incapacitated spouse, priority as guardian, and numerous other benefits. However, many legal concerns will still need to be addressed in advance.

For example, unless and until Texas law provides otherwise, married same-sex couples will still need to assure legal recognition for both parents through adoption. In addition, because Texas is a community property state, if the marriage were to end, questions remain regarding the character and division of the property of the marriage. Hence, a cohabitation agreement, which allows you to specify in advance the division of debts, assets, and other responsibilities in a relationship, may be helpful.  Moreover, for couples who choose not to marry, advanced planning is still vitally important.

You can find more information on legal planning for same sex couples here. For more about these or other matters, feel free to contact me.

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