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Marriage Rights impact Estate Planning Issues


This column first appeared in the San Antonio Express-News and its website on July 26, 2015.

The US Supreme Court, in Obergefell v. Hodges, has ruled that marriage between two people is protected by the Constitution’s guarantee of due process and equal protection. Marriage is a liberty that has been protected by the Constitution and prior Supreme Court decisions. Same-sex couples are accorded the same right to marry as opposite-sex couples. Further, the Constitution does not allow a State to refuse to recognize a lawful marriage performed in another state because the marriage is same-sex.

US District Judge Garcia in San Antonio ruled in early 2014 that the Texas ban on same-sex marriage was unconstitutional, but stayed enforcement of the ruling pending appeal. Other cases moved through appeal more quickly, resulting in the Obergefell decision. Judge Garcia has now lifted his stay. Under Obergefell, many Texas County Clerks (including the Bexar County Clerk) began issuing marriage licenses without regard to a couple’s gender.

The Texas Governor and Attorney General have issued statements expressing concern about the Obergefell decision. Much of their focus is on religious liberty for individuals. But can a government employee, based upon a sincerely held religious belief, refuse to issue a marriage license to a same-sex couple? The US Supreme Court held that same-sex couples may exercise the fundamental right to marry in all States, and that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. When an individual accepts government employment or is elected to a government post that individual’s actions while on the job are acts of the government, and government denial of marriage rights is an impermissible violation of the US Constitution.

In addition to the right to marry (and to divorce), from an estate planning perspective the Court’s ruling now allows all married couples in Texas, regardless of gender, to:

  1. Inherit from the other spouse under the laws of intestacy;

  2. Own community property with the other spouse, and convert separate property into community property;

  3. Grant rights of survivorship in community property to the other spouse;

  4. Make medical decisions for the other spouse under the Consent to Medical Treatment Act;

  5. Proactively create Wills or a Trust granting full inheritance rights to the other spouse;

  6. Enter into Prenuptial and Post-Nuptial Agreements to preserve the character of their previously held separate property;

  7. Appoint the other spouse as Agent in a Medical Power of Attorney and in a Durable Power of Attorney;

  8. Apply for Medicaid nursing home benefits, have the other spouse’s assets count against the applicant, and have full spousal allowance rights;

  9. Have homestead rights, both for occupancy and for local property taxes; and

  10. Have priority to be court-appointed Guardian of the other spouse if better, easier legal planning options were never enacted; plus many other legal rights, a full list of which is too long to fit here.

Same-sex couples (just like opposite-sex couples) who are planning to marry must consider the impact the marriage will have on their finances and their estate plans. They should consider speaking with a qualified attorney about prenuptial planning, and after marriage should modify their Wills, Trusts, Durable Powers of Attorney and Medical Directives to match their new marital status.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via or


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