In 2015 the Supreme Court of the United States issued the Obergefell decision which legalized same-sex marriage across all 50 states. This was a major recognition by the Supreme Court that people of the same sex had a right to marry under the United States Constitution. The effect of the decision has had impacts both on the social fabric of our country and on the law. Specifically, we have in mind areas related to family law and estate planning. While same-sex couples Immediately gained recognition for their marriages the decision opened several questions about how these folks wouldn’t go about living their lives.
If you are a person in a same-sex marriage, then the issuance of the recent Supreme Court decision in Dobbs likely caused you to consider the possibility that your marriage may become an issue left to state legislatures rather than being recognized as valid under the constitution on a federal level. This potential change has ramifications not only regarding your relationship with your spouse on a personal level but also on how the two of you have mapped out your lives as far as your family structure and planning.
In today’s blog post from the Law Office of Bryan Fagan, our attorneys would like to share with you some perspective and information on what the recent Supreme Court decision overruling Roe versus wade may tell us about the court’s intent to look more closely at prior decisions that involve what is known as substantive due process. Specifically, we would like to share with you some perspective on the Obergefell decision which validated same-sex marriage across the country in 2015. In a time where you may be concerned with the Supreme Court overruling that decision as well, it is no use simply worrying about any issue in doing nothing about it.
In a situation like this, we can imagine that you may feel like forces beyond your control are going into action and you can do little to nothing about it. While courts can and will act on their schedules and based on the legal analysis of justices, you can take certain actions on your own to learn about the basics of these decisions so that you can better make informed decisions in your own life. We hope that this blog post provides you with perspective and information where you can base real-life decisions on reality versus headlines on websites and the news.
Nobody can predict the future. You may find various news outlets or people who are confident in one way or the other in what will happen about several subjects that we discuss in today’s blog post. What matters most in your household is what is specific to you and your spouse. With that said, if you have questions about the material that we share in today’s blog post then please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. Our three Houston area locations are open to serve you and answer questions and give information about your life and your specific circumstances.
Same-sex marriage in Texas and its impact on Adoption
Once the Supreme Court found that same-sex couples have a right to marry under the United States constitution in Obergefell v. Hodges, Same-sex marriages across the country became recognized, and the door was opened for same-sex couples to marry. Not only does this carry with it significantly impacts on the personal and relational levels but a legal front, as well. Marriage can have a significant impact on how families plan in terms of retirement, estate planning, and health insurance and health care. In today’s blog post we will focus our attention on the legal aspects of gay marriage.
Earlier Supreme Court decisions allowed Texas same-sex couples to gain the right to federal benefits if one of the persons in the marriage was a federal employee. This includes things like Social Security benefits, Veterans Administration benefits, and health insurance and retirement benefits for same-sex spouses whose partners work for the federal government. Whatever benefits exist for spouses in traditional marriage have now been extended to same-sex couples, as well. This is significant in that across the country while in many states same-sex couples could marry there was not necessarily a guarantee or a right to take advantage of benefits under your or your spouse’s employer-based plans. That all changed this supreme court chose to both acknowledge same-sex marriage rights and issue favorable rulings on cases that sought to declare the right to marry lying only in opposite-sex couples.
When it comes to family-related issues for same-sex couples who are married in Texas one aspect of the discussion that is important to take note of is that same-sex couples may be interested in adopting children to complete their families. In Texas, any adult may file a petition to adopt a child. The basic requirements for adoption in Texas or that the person filing the petition for adoption must be at least 21 years old, be a citizen, a permanent resident, or another qualified alien, is financially able to meet the child’s basic material needs and is physically, mentally, and emotionally able to assume parenting responsibilities. These are the broad requirements that must be in place for you and your spouse to adopt a child in Texas if that is your wish.
Ultimately, the best interest standard will be applied when it comes to a court determining whether to grant a petition for adoption. The courts in Texas can technically utilize you’re being in the same-sex marriage against you when it comes to making best interest terminations regarding adoption. This is not to fearmonger or say that a court absolutely would use your same-sex relationship as grounds to deny an adoption petition. You can look around and see same-sex couples who have successfully adopted children. You may even know people who have been successful in adopting children who were also in a same-sex marriage.
But you also need to understand that nothing is stopping a Texas court from allowing evidence to be admitted into the record or testimony from occurring on the witness stand that relates to your sexuality and that of your partner. This could even happen in a Texas family law case like a divorce or child custody matter. Case law in Texas which points to this being a possibility is quite remote having occurred nearly 40 years ago, but it is something for you to be aware of as you plan the next steps in your family life. This is especially true if you plan to adopt A child or grow your family in that way.
Here is a hypothetical situation that may be able to better illustrate the point regarding the best interest of the child standard and decision-making for your family moving forward. Suppose that you are attempting to adopt A child with your same-sex spouse. During that process, the two of you have engaged with an adoption agency that caters to same-sex couples. Throughout this process, you all have worked 2 build relationships and are now at the point where you feel comfortable moving forward with the petition to adopt A specific child.
After filing a petition to adopt a child in hiring an experienced family law attorney to assist in that process it is possible that a family court judge could decide to not approve your adoption petition due to a belief that it is in the best interests of the child you seek to adopt to be placed with a couple in a traditional marriage. It is not as if a court would specifically state this in their reasoning, but courts would be able to do so given that same-sex parents lack certain protections under the law which can lead to discrimination in areas such as the adoption of a child.
Legal planning for same-sex couples in Texas
The critical areas where the federal recognition of same-sex marriage impacted couples most prominently were estate planning and end-of-life planning. When we consider this sort of emotional and hot-button topic, this sometimes dry and mundane world of estate planning usually does not come to mind immediately. Rather, we start to think about the more emotional and visceral areas of life like the relationship itself, marriage, and family life. However, planning for end-of-life scenarios is impacted by marriage and the decisions we make as adults.
Creating a will is something that all people over the age of 18 should find a way to do. This is something, as the attorneys with the Law Office of Bryan Fagan will tell all our clients, is something you should investigate no matter your level of wealth or your age. There are specific advantages for every person when it comes to creating a will based on you are stay in life. This is true no matter if you are wealthy or not. do not buy into the idea that only rich people draft wills. That is simply not true and could be a major mistake for you, your spouse, and your family if you fail to draft a will while you have the opportunity.
To be clear, a will is a legal document under which you can direct how your property will be distributed upon your death. This relates to real estate as well as personal property. Members of the same-sex community have gauged in estate planning for some time out of necessity. The Texas laws on intestate distribution apply to married couples. Before the time when marriage was recognized between gay couples in Texas estate planning was necessary to ensure that your partner would be able to receive your property after your death and vice versa.
Even now when same-sex marriage is legal in Texas it still makes a lot of sense for you and your spouse to have a will. Not only does having a will allow you to specify how you would like your property to be divided upon your debt it also allows for you and your spouse to make provisions that can determine who will care for your child in the event of your passing such as who will be a guardian for your child until he or she reaches the age of 18. It is much better to take advantage of the autonomy that you have on this subject rather than to allow a probate court judge to make decisions for you after your passing.
The simple truth is that you have an opportunity to make these decisions for yourself. However, since none of us know the time or date that we will pass on from this life it is best to strike while the iron is hot and create a bill for yourself now. The Law Office of Bryan Fagan can help you too not only perform estate planning steps but also draft your will alongside you. Our attorneys can help you to problem solve through difficult estate planning questions and help you arrive at solutions that will protect your present in the account for the future of your family, as well.
A question that you may have as someone who was in a same-sex marriage is what impact a future court ruling of the United States Supreme Court may have on the legitimacy of your will and that of your spouse. For instance, what if the Supreme Court were to overturn Obergefell this rendering your marriage invalid? While a Supreme Court decision would not invalidate your marriage, as a rule, it would return the issue to the individual states just as we saw in the recent Dobbs decision related to abortion. However, even as a Supreme Court decision would not specifically invalidate your marriage it is in our opinion, that Texas and our legislature would honor a same-sex marriage without a federal court decision forcing their hand.
If you and your spouse have previously had wills created, then at this time you may choose to do nothing specific in rather monitor the need for change as time goes on. Right now, there is nothing imminent in terms of the overturning of the federally recognized right for same-sex couples to marry. If you have a will that refers to your “spouse” then you likely don’t have to go out and change the will or create a new will. However, there is also nothing stopping you and your partner from creating wheels that do not reference your marriage if you have not yet created a will. Again, same-sex couples in your position have been drafting wheels for generations to protect themselves and their property.
One thing to keep in mind is that if there is any question about the legality of gay marriage in the future about your will then you should know that a probate court will seek to discern what the intent you had was in creating your will in certain provisions within the will. Regardless of whether your will refers to your partner as a spouse or not if your will is challenged the court will look to the plain language at the will and the circumstances of your life to determine your intent.
So, for example, if you refer to your spouse as such without naming him or her specifically and in the future, the marriage is no longer recognized then it is very possible that the court we’ll simply look to your intent and understand who you were trying to pass property onto even if he or she with no longer be your legal spouse under future changes in marriage laws.
1 way to potentially try and protect yourself and your spouse in the future from any changes in the law would be to state at the beginning of your will that you would like the same person to benefit from provisions in your will regardless of whether he or she is classified as your spouse in the future. The question that we must answer in Texas, should Obergefell be overruled, is whether that decision would apply retroactively to avoid marriage like your own. This would create a great deal of confusion and problems so it may not be the case. However, it is worth monitoring the situation to make informed decisions for yourself and your family.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law and estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about these areas of the law as well as how your family may be impacted by changes in various areas of the law now and in the future.