Since the United States Supreme Court decision in June, the dominoes of marriage inequality have been tumbling so fast it is difficult to keep track of all the courts overturning bans on same-sex marriage. Federal challenges to these bans have been almost all successful. The sole exception came from a Louisiana federal court in early September 2014.
While this is good news for the country, Texas remains one of the dwindling number of states that does not recognize marriage equality. There are at least two pending lawsuits that address same-sex marriage in Texas: a divorce case currently before the Texas Supreme Court (see my article in the Texas Observer) and a San Antonio case before the Fifth Circuit challenging our state’s constitutional ban on marriage equality.
Marrying Out of State
As Texas cases wind their way through the courts, there remains the option of going out of state to get married. Following the United States Supreme Court ruling in June of 2013, the federal government began recognizing same-sex marriage, even among couples who do not live in a marriage equality state.
A number of clients have asked me if there are any practical benefits of marrying out of state. While numerous federal benefits are now available by marrying out of state, whether or not marriage is beneficial to you depends on your individual circumstances. Below is a discussion of some of the related issues to consider when deciding whether to marry out of state. Please bear in mind that the below information is not meant to be an exhaustive analysis of the costs and benefits of marriage. For a complete analysis, you should discuss your situation with your attorney.
Married same-sex couples living in Texas are treated as any other married couple for the purpose of the following federal rights, responsibilities, and benefits:
(1) Federal taxes, including income tax, gift tax, and estate tax. If you marry, you must file your income tax as a married couple. Depending on your and your spouse’s income, marrying may increase your federal income tax.
(2) Immigration. If you marry a foreign national, you may obtain a visa for your spouse.
(3) Military spousal benefits.
(4) If you are a federal employee, your spouse will have access to spousal benefits such as health insurance and FMLA.
Certain other federal benefits, such as social security and Medicaid, are presently not available to married same-sex couples residing in Texas.
Both federal and state laws confer benefits, rights, and protections upon married couples. Because Texas does not allow same-sex marriage or recognize such marriages performed in other states, same-sex couples remain legal strangers for the purpose of Texas laws, even if married out of state. Thus, married same-sex couples do not receive any of the numerous benefits or protections offered to other married couples under Texas law. A few examples of these protections include the following:
(1) Inheritance from a spouse. Texas intestacy laws authorize only blood relatives to inherit from an individual who dies without a will. Thus, to protect your spouse, it is very important to have a will.
(2) The right to make health care decisions for spouse. As with inheritance, Texas law prioritizes blood relatives and next of kin to make medical decisions for you if you are incapacitated.
(3) Homestead protections. Under Texas law, a surviving spouse can inherit a residence without first being subject to debts of general creditors.
(4) Dissolution of marriage. Currently, Texas does not authorize same-sex couples to obtain a divorce in Texas. Thus, couples who mary out of state must get divorced in the state in which they married. Many states have a residency requirement in order to obtain a divorce. For this reason, if you marry out of state, it is very important to select a state without a residency requirement for divorce. A few examples of states without residency requirements for same-sex couples include California, Deleware, Hawaii, and the District of Columbia.
(5) Property protections upon divorce. Texas’ community and separate property laws provide some protections for spouses upon divorce; however, these protections do not apply to same-sex couples. As a result, some couples draft a cohabitation agreement (also known as a domestic partnership agreement) to specify division of assets in case of dissolution of the relationship.
(6) Custodial rights to children. Adoption is absolutely necessary in order to protect the custodial rights of the non-birth parent.
In short, while out-of-state marriage confers a number of federal benefits on same-sex couples, state law still precludes access to many important protections that are available to opposite-sex couples. Thus, same-sex couples living in Texas must take additional legal measures by drafting wills, powers of attorney, cohabitation agreements, etc. in order to obtain some of these protections.
Questions? Feel free to contact me.