The Surprising Truth about Same Sex Marriage in Texas

Given the ongoing national debate over same-sex marriage, one might assume it is a complex legal topic that is still evolving. Believe it or not, it is not only a done deal – it has been settled for seven years. Same-sex marriage has been legal in Texas (and the other 49 states) since the Obergefell v. Hodges decision by the Supreme Court in 2015. You can imagine the reaction – huge pent-up demand for this privilege was immediately unleashed. In the three months following the decision, 2,500 same-sex couples were married in Texas, with many more since. As there is not a great deal of summary information on this topic (outside of dry legal journals), we will do our best today to answer a few of the most common questions.

The Logistics of Same-Sex Marriage are Identical

There are no shortcuts for same-sex couples to wed in Texas (sorry!), but neither are there extra hurdles to jump through. Here are the three steps to follow for a legal (same-sex or heterosexual) Texas marriage:

• Apply for a license at a county clerk’s office
• Complete a sworn application establishing each is legally eligible to enter into a marital relationship
• After a 72-hour waiting period, any couple can be married by a judge or authorized religious official

Of course, there’s always some fine print – these caveats apply to all marriages in Texas:

• Neither party can be currently married
• Anyone younger than 18 needs an authorizing court order
• Marriage between relatives is limited (no marriage between first cousins or closer by blood, nor can family members marry a current or former step-parent or step-child)

And as a result of the Supreme Court decision, it is unlawful for any authorized official to refuse to perform the marriage ceremony between two eligible parties due to race, religion, national origin, or sexual orientation. In addition, any lawful marriage performed in another state (or country) is also valid in Texas.

Surprise #2 – There are Tax Benefits to Legal Same-Sex Marriage

We know that marriage is all about the lovey-dovey stuff, but after the rice is swept up and the gifts are opened/returned, there are also positive financial ramifications! Many of these federally sponsored benefits are now available to same-sex married couples, including:

• Filing joint income tax returns
• Estate and gift tax exemptions
• Creating family partnerships (to divide business income)
• Veteran’s benefits (health, death pensions, loan guarantees, etc.)
• Social Security benefits

Legal marriage also establishes the presumption of joint ownership of mutually acquired property, and strengthens the rights of both parties with regard to their children.

Surprise #3 – Same-Sex Couples are Now Eligible for Group Benefits

Prior to the 2015 Supreme Court decision, some states denied same-sex couples the right to marry, and as a result, employers were able to withhold group spousal benefits, such as health insurance. Now, employers must extend any group benefits to any legally married spouse, regardless of sex. This includes the post-employment continuation of health coverage commonly known as COBRA.

Grinch Alert – Employers can decide not to offer group health to any spouse (booo!), but they cannot pick a particular group of spouses (like those of the same sex) to exclude.

And there is far more to group benefits than just health insurance. Any ERISA-covered pension plan must provide qualified joint and survivor annuities when an employee is legally married. Other retirement accounts (like 401(k)s) must provide similar options or facilitate the transfer of the account balance to the surviving spouse upon the death of the other. Same-sex married couples are also covered by the Family and Medical Leave Act. The rules covering workers’ compensation now also apply to same-sex married couples.

A Few (Cautionary) Knowledge Bombs

As you can see, there has been tremendous change in Texas (and across the nation) with regard to same-sex marriage since 2015. The net result is to place same-sex couples on (nearly) equal footing with their heterosexual counterparts. While not quite a Grinch Alert, we do have several words of caution. In my experience, issues regarding same-sex marriage are much more likely to be litigated in Texas. I believe this is because opinions on this topic are more polarized here, and also because not all Texas courts are as experienced with same-sex marriage as others.

One more recommendation – as soon as a same-sex couple decides to become parents, please strongly consider seeking legal advice (particularly if you are not the parent giving birth). Resolving custody disagreements between same-sex parents is a rapidly growing area of the law in Texas and elsewhere. Unfortunately, we have seen many parents lose all rights to a child during court proceedings without the correct legal safeguards in place. And of course, in the unhappy event your union is suffering and divorce is being contemplated, it is also advisable to have legal representation.

Equal Protection Under the Law

With same-sex marriage officially the law of the land, individuals of all sexes are now protected if they choose to follow their hearts. The leveling of the marriage playing field will undoubtedly result in more same-sex unions, and (hopefully) more happy families. If you have any questions or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.