The DOMA Decision And Estate Planning In Texas
On March 27, 2013 the United States Supreme Court handed down its decision in US v. Windsor in which it ruled that the federal government could not define marriage so as to prevent same-sex partners from getting federal benefits. The decision represented one of the swiftest civil rights shifts in American history, however, because only part of the federal Defense of Marriage Act was deemed unconstitutional, the change does not usher in a new era of estate planning in states which currently do not recognize same-sex marriage.
Texas, of course, does not recognize same-sex unions. As such some of the same old advice on handling estate matters applies. While those couples in a same-sex marriage who live in states recognizing their marriage will be entitled to some federal benefits, such as Social Security benefits, the portion of DOMA allowing states (as opposed to the federal government) to not recognize same-sex marriages from other states remains intact. Thus it remains unclear as to whether those same-sex couples who are married in states recognizing their union will be entitled to federal benefits.
For estate planning purposes, same-sex couples in Texas should continue to protect their assets and themselves with the same five basic documents: Durable Powers of Attorney, Wills, HIPAA Authorizations, Medical Powers of Attorney, and Directives to Physician. Additionally, same-sex would be well-advised to consider naming a guardian should incapacity and appointing an agent to dispose of their remains.