Estate planning for same-sex couples is critical in Texas.
While federal laws are moving toward recognition of same-sex marriages, Texas law, which controls probate, does not recognize same-sex marriages from other states. Without appropriate advanced planning, same-sex couples can be left without basic protections. By taking the proper steps, you can ensure that your family is protected.
Carole recommends, at a minimum, all same sex-couples have the following:
Medical Power of Attorney
This document gives another person the right to make medical decisions on your behalf. Without this, your spouse or partner, the person who likely knows your wishes better than anyone, will not be able to assist with making critical decisions about your health.
The Health Insurance Portability and Accountability Act (HIPAA) is a federal statute that protects the confidentiality of your medical information. It prevents doctors from giving your medical information to anyone, under almost any circumstance, without your express permission. By signing a HIPAA release, you are permitting medical care providers to share critical information with your spouse or partner so that he or she can make informed decisions on your behalf.
Durable Power of Attorney
A durable (financial) power of attorney allows a person to conduct financial transactions on your behalf. This document, which can become effective immediately or at your incapacity, will allow your spouse or partner to manage your finances when you cannot.
The intestate distribution laws in Texas provide absolutely no protection to your same sex spouse or partner. What’s worse, unless your children are either your natural or adopted children, they will not be recognized either. Texas intestacy laws are complex (see a general explanation of them here from the Travis County Probate Court), and typically do not represent how a person would like their estate to be distributed. The only way to ensure that your estate is distributed according to your wishes is to draft a will.
Advanced Guardianship of Minors
If you and your spouse or partner have children together, but you are not both legally recognized as the parents, the non-custodial parent risks losing custody of your children if something happens to the custodial parent. By drafting advanced guardianship provisions, you are informing the courts of who you want raising your children if something should happen to you.
To learn more about same sex estate planning, contact Carole Callaghan.