The Importance of LGBT Family and Estate Planning

Equal rights is something I have been passionate about for a long time, particularly the issue of same sex marriage. In many states, including Texas, same sex marriage is not recognized as a legal marriage. Prior to becoming a lawyer, I was fairly unaware of the breadth of consequences which accompany being unable to legally marry. Marriage offers several advantages and protections which many of us, including myself, take for granted. This article does not attempt to example all the protections marriage provides, but touches on some of the key topics which arise in family and estate planning.

The first thing that comes to my mind is the tax advantages of filing as a married couple. The worst tax filing status is filing individually. Without the ability to legally marry, the federal government prohibits LGBT families from filing taxes as "married." LGBT couples must file individually, or file as married (jointly or separately) and risk getting caught and penalized. For an interesting read on this topic, see the following link:
http://www.huffingtonpost.com/2012/03/14/income-taxes-gay-marriage_n_1333413.html

In Texas, married couples enjoy the right to inherit through intestacy law, protection through community property law, certain probate exemptions, priority for appointment as a surrogate decision-maker, guardian, or administrator for each other, and visitation and information rights during hospitalizations or other medical stays. There are no such protections for LGBT families, so they must be proactive in protecting themselves. For LGBT families, it is critical to implement a family and estate plan with accompanying documents because the default rules which protect married couples who fail to plan, do not protect LGBT couples. If an LGBT couple fails to plan, they will probably eventually face a dire, and potentially irreparable, situation upon death or incapacity.

Legally married couples generally do not have to take affirmative steps to establish parental rights regarding their children. Of course, part of this is related to biology. However, regardless of biological paternity, for legally married couples, under the Texas Family Code the husband is presumptively the father of any child born during the marriage. There is no presumption that a child born to an LGBT couple is a child of both parents. Thus, if one LGBT spouse gives birth to a child, it is critical to establish the rights of both parents through adoption.

An adoption by a married couple is generally conducted in one proceeding and is finalized with both parents adopting the child at once. Texas does not allow same-sex couples to finalize an adoption in a two parent adoption. For LGBT couples, one parent must adopt the child as single, then a second parent adoption must be initiated. If you are an LGBT couple with children or contemplating children, it is important to establish parental rights for both parents, not only to protect the child's rights to support and to inherit from both parents, but to preserve both parents legal rights to the child.

For all of the reasons I have discussed, and many more, it is critical for LGBT families to execute a comprehensive estate plan and establish parental right. I believe inevitably,same-sex marriage will be recognized by every state and the federal government. I look forward to the day everyone who desires to marry can enjoy the advantages and protections, and perhaps misery (I kid).