Laura Kalish Family Law Blog on Lawyers.com

Got your attention with that headline, didn’t I?  Few current issues are as emotionally and politically charged as this one.   Here is summary of what you should consider if you are in a committed same-sex relationship and live in the state of Texas.

Conflict of Laws!

The states vary in their treatment of this issue. A states may allow same-sex marriage OR “domestic partnerships” OR “civil unions” AND/OR recognize same-sex marriages that have been performed in other states or countries (like Canada).  Or, a state may opt for none or the above, or even forbid it by law.

The U.S. Federal government, by law may not treat same-sex relationships as marriages for any purpose, even if valid and legal in one or more states.  (DOMA, “Defense of Marriage Act”, 1996).  This means that under Federal law (i.e. for tax, immigration or social security, purposes) a same-sex couple who is legally married in their state will not be recognized as such.  

"Marriage", "domestic partnerships" and "civil unions" are not all equal, legally speaking, but they can provide some measure of protection in certain situations including: provision of medical benefits, the ability to make medical decisions for an incapacitated partner, child custody and visitation, property division, and inheritance.

On May 15, 2008, the California Supreme Court legalized same-sex marriage in that state.  On November 4, 2008, a general election was held and "Proposition 8" eliminated this right.  (Although same-sex couples who were married in the state during the time same-sex marriage was legal do have a valid California marriage.)

Several states have laws that deal with same-sex unions. Today it is possible for same-sex couples to legally marry in Massachusetts, Connecticut and Iowa.  Maine passed a law allowing same-sex marriage but it was repealed by public referendum in November, 2009. Vermont has passed a law allowing same-sex marriage in the state which took effect on September 1, 2009. A New Hampshire law will take effect on January 1, 2010. The state of Washington passed a law nicknamed the "R-71 Everything but marriage" law, because it gives legal protections to same-sex couples but does not allow them to marry. (note: since this article was written Washington D.C. has also legalized same-sex marriage.)

State of the law in Texas

Currently, in the state of Texas, same sex marriages are illegal and there is no recognition of same-sex marriage which were performed in other jurisdictions. There is no legal vehicle for recognition of same-sex couples.   In fact, Texas has been active in passing state laws that ban same-sex marriage and civil union, and forbid granting a marriage license in these situations, even to the point of amending the state constitution to forbid such marriages.

However much the conservatives want to wail, scream and gnash their teeth, loving,  same-sex commitments remain alive and well in the Lone Star State. 

If you are in such a relationship in this great state of ours, you should consider whether or not you and your partner need to create some legal protections of your own.

Here are some things to consider:

            1.  Do you each have a health care directive?  If you want your partner to be able to speak for you in the event that you are unable to speak for yourself, you need to specify this in a legal document before you are incapacitated.  If you do not have such a document, your legal “next of kin” will be the one who will be called on to speak for you if you cannot do so, and may decide to exclude your partner.

            2.  Do you each have a valid will?   If you do not have a will, your partner can be left with a mess in the event of your demise.    Your partner could lose (or be forced to split with your “legal heirs”) the home, vehicles, bank accounts and personal property.   In an emotionally charged situation, without documentation, your partner may have trouble proving who is the legal owner of the property, even if that property is (for practical purposes) his or her own.

            3. Should you have a domestic partnership agreement?  Some couples find this unappealing, because it seems to reduce a loving relationship to a “business deal”. However, unless and until your government sees fit to give you other alternatives, you have to take care of yourselves as best you can.  A domestic partnership agreement can deal with a variety of issues such as property ownership, property division in the event of a split, how shared expenses are paid, and so forth.

         4. What about the children?  If you have children in your relationship you may want to consider whether both partners should be designated on school records, whether legal documents should be signed which allow medical care to be sought by either partner, and whether a more legally formalized relationship should be considered, such as  a court order for an adoption or for “non-parent conservatorship”.   In Texas, “any adult” may adopt, so adoption by same-sex couples is not illegal, but, depending on circumstances, can be difficult.

            5. Do you need to review the following?

A. Your employer’s policies to see if your “domestic partner” can obtain benefits?

B. Your bank accounts to be sure that you have a “right of survivorship” on joint accounts?

C.  Your “beneficiary designations” on your IRA’s, 401K plans and life insurance policies, to be sure they are up-to-date?

Protect Yourself!

As you can imagine, having the federal government, several of our states and our neighbor to the north all on “different pages” about this fundamental issue can and does create a variety of confusing circumstances.

Although some of the issues discussed in this article can be unpleasant to think about and discuss, there is no substitute for informed preparation.   An attorney who is familiar with family law, estate planning issues and the unique needs that your situation requires, can help make the experience as painless as possible, so that you and your family sleep better at night.

NOTE: Laws regarding same-sex unions are constantly changing. Although this article is frequently updated, the reader should check news sources for current laws.  This article is not intended to be a substitute for legal advice.

Laura Kalish is a Partner in Kalish Law Office in The Woodlands, Texas.  “Passionate, Professional and Personal”, since 1984, the firm and attorneys are  proud to be of service to the LGBT community. www.kalishlawtexas.com