Without benefit of legal marriage, same-sex couples in Texas have to take extra steps to protect themselves and their children


Even as the LGBT community around the country celebrated this weekend with same-sex couples who were able to legally marry in New York state for the first time, and even though six states plus the District of Columbia now legally recognize same-sex marriage, the battle for equality is still a long way from over.

When American opposite-gender couples legally marry anywhere, they automatically receive a long list of rights, benefits and responsibilities. But same-sex couples, even those married in a jurisdiction where such marriages are legal, still have to jump through any number of legal hoops to ensure that their unions — and their families — are legally protected.

Same-sex couples

On July 20, Ron Wallen of California lost his partner of 58 years — and almost everything else at the same time.

The two had been legally married for almost three years when Wallen’s partner, Tom Carrollo, passed away, leaving Wallen with no monthly pension, no Social Security benefits and no home — all because of the federal Defense of Marriage Act, DOMA for short.

Signed into law by President Bill Clinton in 1996, DOMA, according to the Human Rights Campaign, requires that, “Regardless of the Social Security Administration’s position, the Defense of Marriage Act of 1996…established the legal definition of ‘marriage’ as only a legal union between one man and one woman…”

The law is currently under appeal.

Section 3 of DOMA, which prevents the federal government from recognizing the validity of same-sex marriages, has been found unconstitutional in two Massachusetts court cases. The Department of Justice, under President Obama’s administration, has even declined to defend the law in court because the DOJ has said that at least parts of DOMA are unconstitutional.

And in many states — including Texas — not only is same-sex marriage not legally recognized, such legal recognition has been expressly prohibited through statute or constitutional amendment.

“We have no rights in Texas,” said Dallas attorney Rebecca Covell. “[LGBT couples] are single in the eyes of the laws of Texas, so you have to create your rights by contract.”

In order to imitate the same rights a legally married opposite-sex couple gets with a marriage license, Covell said, same-sex couples need six documents: A medical power of attorney, a statutory durable power of attorney, a declaration of guardianship, a directive to physicians, an appointment of agent to control disposition of remains and a will.

Covell said Texas has one of the easiest probate systems in the country, and the “easy track” for same-sex couples here is to make with a will. It is, she said, possibly one of the most important documents a same-sex couple needs.

“If you don’t have a will, the state of Texas makes all the decisions for you, and everything goes to your next of kin,” Covell said. “What you can do with a will includes designating who the beneficiary is; designating who you leave in charge; making special provisions if you have children, someone with a special need, things of that nature; and designating when certain people will receive assets.

“None of that happens if you don’t take the time and trouble of doing a valid Texas will,” she reiterated. “The state of Texas will make all those decisions for you — and Texas is not a gay-friendly state.”

“We have been written out of the laws in Texas,” says Covell. “That’s why having these documents is imperative for non-traditional couples.”

Even with all these documents in place, same-sex couples are still denied certain benefits and advantages — such as Social Security survivor benefits, tax benefits and an unlimited marital deduction in your will — thanks to DOMA. Some 1,138 federal rights are attached to a marriage license, and it’s impossible to mimic all of these rights otherwise.

Though a gay couple can’t get Social Security benefits from their partner, they can still appoint their partner as a beneficiary for a 401K plan or an IRA.

With pensions, it is a case-by-case basis. If one partner works for a corporation outside Texas whose company policy would recognize the other partner for spousal benefits, you might be in luck. It does, however, depend on the company policy, and this is not consistent among all out-of-state businesses.

“We get no automatic protections under the laws,” Covell says in closing, “and you owe it to yourself and your partner to protect your relationship.”

Same-sex couples with children

When children are involved, the stakes can be higher. If one of the partners in a same-sex relationship dies, keeping children with their surviving parent entails a lot of paperwork.

Attorney Stephanie Hall says that same-sex couples have three options for protecting the custodial rights of the non-biological parent — or, in legal terms, the non-parent — assuming there’s not a second biological parent outside the same-sex relationship: a joint managing conservatorship; a same-sex, second-parent adoption, and a will with a declaration of guardianship.

With a joint managing conservatorship, non-married straight couples and same-sex couples can, for about $1,200, avail themselves of some of the same statutory laws that apply to married couples when it comes to child custody, such as the right to consent to medical treatment, the right to make educational decisions and right to represent a child in legal proceedings.

In a same-sex, second-parent adoption, which costs around about $3,500, non-biological parents can become the legal second parent to their children. Due to a law in the Health and Safety Code, the birth certificate can’t be reprinted with the same-sex parent’s name on it due to the “one male, one female parent” requirement, but adoptive parents do get a few more benefits than those with just a joint managing conservatorship, such as tax return exemptions.

“Same-sex, second-parent adoptions are done by agreement between the parent and the non-parent,” says Attorney at Law Michelle May O’Neil.

With adoption, there is a very small chance of the adoption being considered void, though this almost never happens, O’Neil said.

Hall said that many of her clients have chosen to do both a joint managing conservatorship and a legal adoption to make sure their children are protected.

There is “no distinction” between an adoptive and biological parent, according to O’Neil.

A will is once again supremely important, as it designates who gets custody of any child or children, and the children’s estate, in the event of a parent’s death.

In an advance declaration of guardianship, Hall said, a biological parent designates, in advance of any illness or injury, who will be guardian of their child.

Hall said it is a “very strong document” that is a parent’s way of saying, in effect, “Hey judge, if anyone starts to fight over custody of my kid after I’m dead, while I’m competent, here’s my first choice, my second choice, my third choice. …”

In a same-sex family, if there is another living biological parent outside of the relationship — such as, in the case of a divorce — the non-biological parent’s only means of protection are to have a same-sex, second-parent adoption.

“There is no automatic assumption that the other parent has any legal relationship with the child,” says attorney Susan McKay.

In the event that the non-biological parent dies, it is essential that person have a will citing what their partner and children will receive. Otherwise, everything goes to the deceased partner’s next of kin.

Compare that to a legally recognized marriage where, if the deceased didn’t leave a will, everything automatically goes to the legal spouse.

“If a straight person dies without a will, it’s set up that way by default,” said Hall. “For an LGBT person, you have to take that precaution” of making a will and designating who gets what.

“The safest thing to do would be for the non-parent to adopt the children and have a will,” said O’Neil. “Short of having a will, then the non-parent needs to basically adopt the children and become a parent. I can’t stress enough to people in the community that having that legal document relationship is essential to secure the relationship of the non-parent and the children.”

Due to the lack of legal standing a gay couple has in the eyes of the law, there isn’t a whole lot that can be done in terms of child custody if a gay couple decides to separate.

If no other precautions have been taken, such as a joint managing conservatorship, then the non-biological parent has 90 days from the day they were living with and sharing “care, control and possession” of the child to file a suit, assuming they had been caring for that child for at least six months prior to their separation.

Hall noted that the exact meaning of “care, control and possession” has been debated in the courts in several recent court cases — involving grandparents, longtime boy/girlfriends in opposite-sex relationships and same-sex relationships — and results so far have been inconsistent.

O’Neil and her law firm recently litigated such a case involving a lesbian couple, and although O’Neil’s client did win the right to sue for custody following several appeals, the client eventually chose not to start over in trial court with the actual custody case to avoid putting the child through the trauma of an even-more extended legal battle.

If a couple has a joint managing conservatorship already in place, then legally there should be a level playing field in the battle over custody of the children if a same-sex couple splits.

However, if the non-biological parent didn’t adopt the children or get a conservatorship, then aside from asking for periods of possession, the non-biological parent is likely to end up with limited rights and have less time with the child than the biological parent. The judge would still, however, determine what was in the best interest of the child and either parent could end up with primary custody.

Senior same-sex couples

With a heterosexual marriage, couples only have to be married 10 years for one to get a deceased partner’s Social Security benefits as a spouse. In an LGBT relationship, surviving partners get nothing.

Retirement isn’t the only problem facing older same-sex couples. In a nursing home or assisted living situation, some same-sex couples are faced with prejudice at their most vulnerable and are forced to go “back in the closet.”

According to the website for SAGE, a national organization providing programs and services for older LGBT people, LGBT older adults may be as much as five times less likely to access needed health and social services because of their fear of discrimination from the very people who should be helping them.

Older LGBT adults are twice as likely to live alone as heterosexual older adults and more than four times as likely to have no children. Because of that, the informal caregiving support system people assume is in place for older adults may not be there for LGBT elders.

According to the “We Give a Damn” campaign’s website, older LGBT people are at greater risk for depression, substance abuse, mental and physical health complications, unnecessary institutionalization and premature death.

Ultimately, 1 in 5 say they would have no one to call in a crisis, a rate 10 times greater than for the rest of the senior population, the website notes.

According to one survey of agencies serving seniors in the U.S., half of all respondents reported that if the sexual orientation of gay older adults were known, they would not be welcomed at senior centers. Even when providers mean well, they often lack the training to offer culturally sensitive services that meet the needs of gay and transgender older adults, the survey said.

“…Even when providers are supportive, fear of discrimination keeps many LGBT elders in the closet and prevents them from seeking the care they need,” said Michael Adams, executive director of SAGE.

While legal resources and options for addressing these issues are relatively scarce, advocates said older LGBT people, whether they are single or part of a couple, need to take advantage of as many options as they can to plan ahead and hopefully avoid future problems.

For same-sex couples in their retirement years, planning is paramount.

In Texas, the law does not default to protect LGBT couples. Since a gay marriage isn’t federally recognized and Social Security benefits cannot be passed onto a same-sex spouse, it is once again urgent to for same-sex couples to have a will designating their partner as their heir. Without it, again, the deceased partner’s legal next of kin gets everything.

A same-sex partner can be designated as beneficiaries in 401K plan as well as IRAs. Since a 401K is provided by an employer, it’s more structured. IRAs are designed for those without 401Ks, so they’re a bit less structured.

The key to retiring with a same-sex partner is planning, said attorney Christopher Farish.

But, Farish added, “Failure to plan is not only an issue in the LGBT community. Failure to plan for retirement or death of a spouse is universal. Still, failure to plan in an LGBT relationship can be catastrophic.”