The landscape of marriage in the United States has transformed significantly, particularly for same-sex couples, following pivotal legal battles that sought to recognize their right to marry. Understanding the nuances of these changes, especially in traditionally conservative states like Texas and Florida, is crucial for effective estate planning. This becomes even more imperative when considering the legal intricacies and the potential complications that may arise in the absence of a clear and intentional estate plan.
The Landmark Case of Obergefell v. Hodges
The monumental 2015 Supreme Court decision in Obergefell v. Hodges[1] marked a nationwide recognition of same-sex marriage. This ruling declared that the right to marry is guaranteed to same-sex couples under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. This decision not only legalized same-sex marriage across the United States but also required states to recognize such marriages performed in other jurisdictions, thereby standardizing the legality of same-sex marriage across state lines.
Texas: Common Law Marriage and Its Complications
In Texas, common law marriage, also known as an informal marriage, can be a critical aspect for same-sex couples to understand. Texas recognizes common law marriages if couples (i) live together (“cohabitation”), (ii) agree that they are married, and (iii) present themselves as a married couple to others.[2] Since the legalization of same-sex marriage, this provision also applies to same-sex couples. Recognizing a common law marriage in Texas requires couples to either sign and file a declaration with the county clerk or alternatively, demonstrate the aforementioned criteria should a dispute regarding the legality of the marriage later arise.
In re Estate of Whetstone,[3] the decedent, Linda Jean Whetstone, died intestate (without a will) and the decedent’s sister, Nancy Rhodes, challenged the surviving partner’s (Deanine Reed’s) standing as a common law surviving spouse. The court held that an informal marriage between the lesbian couple did not exist because they were not perceived as married by those close to them. At the bench trial, conflicting evidence was presented with regard to the couple’s cohabitation and public acknowledgment as a married couple. Reed testified that she continued to pay her daughter rent after she moved in with the decedent, and that “they were ‘a bisexual couple in a neighborhood who frowned upon people who don’t do the will of God.’”[4] The court found that evidence presented by Reed was insufficiently supported and therefore, she was not entitled to inherit as Whetstone’s surviving spouse.
For LGBTQ+ couples in Texas, establishing a common law marriage is crucial if one partner dies without a will, as it significantly impacts the management of their estate. Without a recognized marriage, the surviving partner may face significant obstacles in claiming inheritance, as Texas intestacy laws default to favoring biological relatives or legally adopted family members. As discussed in Whetstone above, this can lead to disputes, especially if the decedent’s family does not recognize or accept the common law relationship.
To mitigate such risks and ensure that the decedent’s wishes are respected, it is advisable for partners to formalize their relationship through a will or trust. These legal documents not only clarify the distribution of assets but also provide necessary legal protection for the surviving partner. Ensuring that all personal wishes concerning estate and guardianship issues are clearly outlined in these documents can prevent potential conflicts and safeguard the rights and intentions of both partners after one’s passing.
Florida’s Journey: Brenner v. Scott
In Florida, the legalization of same-sex marriage came slightly earlier than the Obergefell decision, through the federal district court case Brenner v. Scott.[5] In this case, the ruling struck down Florida’s ban on same-sex marriage as unconstitutional. This ruling was pivotal in ensuring that same-sex marriages were recognized before the U.S. Supreme Court’s ruling in Obergfell, which provided a foundation for equal rights in estate planning.
Emerging Challenges to Obergefell v. Hodges
Obergefell is facing potential challenges as recent legislative actions in Tennessee and Michigan, which exemplify a broader trend of resistance against the full acceptance of this ruling. Tennessee, for instance, has passed laws allowing officials to opt out of solemnizing marriages, affecting the practical application of the Obergefell decision without altering the legal right to same-sex marriage licenses.[6] Michigan’s Religious Freedom Restoration Act,[7] if passed, could allow individuals and businesses to refuse services to same-sex couples based on religious beliefs, raising concerns about potential discrimination that conflicts with anti-discrimination laws upheld by Obergefell; however, Governor Gretchen Whitmer recently signed legislation expanding the Elliott-Larsen Civil Rights Act to protect LGBTQ+ Michiganders against discrimination in employment and housing, reinforcing anti-discrimination measures.[8]
In 303 Creative LLC v. Elenis,[9] the U.S. Supreme Court ruled 6-3 in favor of a Colorado web designer who refused to create websites for same-sex weddings, citing her First Amendment rights. This decision is viewed as setting a precedent that may allow more businesses to refuse services based on expressive speech claims, potentially increasing discrimination against LGBTQ+ individuals and other marginalized groups. Critics, including the court's liberal justices, warn that this ruling could lead to broader refusals of service to various groups under the guise of free speech, raising concerns about the erosion of anti-discrimination protections.
Judicial shifts toward a more conservative composition, along with legislative efforts at both state and federal levels, present possible threats to the Obergefell ruling. These actions include state legislation that undermines the decision's protections, often citing religious liberty. The changing political and cultural climate contributes further to the challenges, potentially emboldening movements against LGBTQ+ rights. Additionally, direct legal challenges to Obergefell continue to emerge, potentially escalating to the U.S. Supreme Court and threatening the decision's stability.
Despite these national trends, in states like Texas and Florida, there are currently no new legislative threats targeting the Obergefell decision directly. Both states have adhered to recognizing same-sex marriages since the Supreme Court's 2015 ruling. In Texas, despite historical opposition and pre-existing bans, public opinion has increasingly favored the recognition of same-sex relationships, and there has been no significant movement to undermine the ruling. Similarly, in Florida, the legalization of same-sex marriage has been firmly in place since the Brenner v. Scott decision in 2015, with the state fully adapting to this change. Overall, while the national conversation reflects ongoing debates and potential instability for Obergefell due to political and judicial shifts, the current legal framework in Texas and Florida remains supportive of the rights established by the decision.
Estate Planning and the Importance of Seeking Legal Guidance
For members of the LGBTQ+ community, the recognition of marriage rights brings an array of legal benefits and responsibilities, including those related to estate planning. Estate planning allows individuals to dictate how their assets should be distributed after their death, nominate guardians for minor children, and specify wishes for end-of-life care.
In both Texas and Florida, if a person dies without a will (intestate), state laws dictate how their assets are distributed. These laws typically favor biologically related or adopted family members, potentially leaving a same-sex partner without legal protections if the marriage is not legally documented or recognized. This scenario underscores the critical importance of having a will and other estate planning tools like a trust, health care directive, and power of attorney, particularly for non-traditional LGBTQ+ families or where legal marriage status may be unclear or disputed.
Don’t Leave Your LGBTQ+ Relationship Unprotected
For LGBTQ+ couples, the legal validation of your relationship through marriage and its recognition across all states provides a substantial basis for protecting your rights and those of your loved ones. However, this alone is insufficient to ensure your wishes are respected, and your family is protected after you pass away. Proactive estate planning is crucial.
[2] Tex. Family Code § 2.401 (2005). Although the Texas Legislature has not yet amended the statutory language since the U.S. Supreme Court's decision in Obergefell v. Hodges, same-sex common law marriage is recognized in Texas.
