Considerations For LGBT Couples In Texas In The Event That Same-Sex Marriage Is Repealed

In this article, you can discover…

• How the repeal of same-sex marriage could impact your estate planning. 
• The differences a repeal could make in estate taxation.
• How an attorney can help you navigate a repeal and secure your estate. 

How Could Existing Estate Plans Be Affected By The Repeal Of Same-Sex Marriage?

President Biden passed the Respect for Marriage Act in December 2022, mandating all states to recognize and treat same-sex marriages the same way they would with any other marriage. This ruling can only be changed if it is overturned in court, and there are currently no cases against the court.

With that said, many of the things that have been said during the election cycle have caused quite a bit of concern in the LGBT community about the fate of their relationships. While these concerns are valid and warranted, the best defense is to be properly prepared for the possibility of same-sex marriage being overturned. 

What Recommendations Would You Have For Someone Looking To Plan For The Event That Same-Sex Marriage Is Repealed?

Since this is even a consideration, I believe it is even more important for same-sex couples to get serious about estate planning. This also means carefully reviewing any existing estate plans, as it is important to be sure that you are using the proper language to plan for any possibilities.

A common question raised in probate courts is whether the marriage was voided before or after the will was made, as this can change whether or not the spouse will benefit. Making sure that your estate plans are worded properly is an important step toward preparing for a potential repeal by protecting your spouse’s beneficiary status.

If Same-Sex Marriage Is No Longer Recognized In Texas, What Will Happen To My Spouse’s Inheritance Rights?

Under our current law, there is the risk that your documents could be written in a way that ultimately leads to your spouse being treated as though they died before you, meaning that they would inherit nothing. In the event that your marriage is no longer recognized, the usual protections for a spouse will not apply. This means that you will need to have an estate plan and be sure that it is set up correctly, or else your spouse could receive nothing if you should die without a will.

Would The Repeal Of Same-Sex Marriage Affect My Insurance And Retirement Beneficiary Designations?

A repeal could definitely affect your designations. For instance, most 401Ks are governed by what’s called ERISA, which is a federal law stating that a spouse must be the beneficiary for most 401Ks. However, that could change if your spouse is no longer recognized as your spouse by the law. This is why it is very important to list someone specifically using personal identification such as their social security number rather than just listing ‘spouse.’ This is where the danger lies. 

Attorney Farren Sheehan is a seasoned lawyer based in Central Texas who has helped countless clients just like you navigate the intricacies of proactive estate planning. With over 15 years of experience, she is prepared to assist you in preparing for the worst so that you can reclaim your peace of mind.

Still have questions? Ready to get started? Contact Sheehan Law today to schedule an initial consultation.

Will My Estate Follow Different Tax Laws If Same-Sex Marriage Is No Longer Recognized?

Yes, and this is especially an issue in larger estates. Spouses have unlimited gifting capacity, meaning that when the first spouse passes, their estate can roll over to the other spouse with no estate tax as a gift. However, when the second spouse dies, estate taxes come into play. If your marriage is not legally recognized, you will not have the same entitlement to the protections of a spousal rollover.

If Same-Sex Marriage Is Repealed, Will My Surviving Spouse Need To Challenge My Will?

This is a likely scenario, especially in the event that the deceased spouse’s family was not supportive of the relationship. If this is the case, it is possible that the family can bypass the spousal gift altogether and have the entire estate returned to the family.

What Advice Would You Give To A Client Who Is Anxious About Their Estate Plans Being Challenged?

The best advice I could give to any client on this subject is to prepare, meaning to make sure that you have reviewed all of your documents and adjusted any potentially problematic wording accordingly. Your best bet is to visit an experienced estate planning attorney who can help you review all of the language in your documentation. It is imperative that you use the appropriate language to protect your estate plans. 

How Can You Provide Legal And Emotional Support For Clients Who Are Struggling To Deal With Uncertainty?

It is important that my clients understand that their marriage is as valid and important as any other, meaning that there are several protections we can put into place if necessary. Techniques such as living trusts and specific language about who you are leaving things to can help to make sure that your wishes are followed in the event that same-sex marriage is no longer legally recognized.

Still Have Questions? Ready To Get Started?

For more information on What Happens To Your Estate If Same-Sex Marriage Is Repealed, an initial consultation with Attorney Farren Sheehan is your next best step. Get the information and legal answers you are seeking by calling (512) 355-0155 today.