Dear Mr. Premack: My partner and I moved to Texas a few years ago. Unlike some other states, we know that we cannot be legally married under Texas law. Putting all the politics aside, we just want to be treated fairly and be able to take care of each other. We know that married couples have some automatic legal rights that we lack – like making medical decisions for each other, or inheriting from each other. Our question is this: are there any steps we can take under Texas law to mimic the rights of a married couple? – T. J.
Married couples do have a variety of automatic rights under Texas and federal law that are denied to non-traditional couples (who are denied the legal right to marry under Texas law). For instance, Social Security and various pension benefits are accorded to married couples, but not to unmarried couples. You face legal and political issues from civil rights to medical decisions to inheritance rights.
While there is nothing a non-traditional couple can do to receive Social Security benefits (other than to encourage change through the political process), there are a number of actions you can take on other fronts:
Inheritance: You have full legal rights to declare who will inherit your assets. A Will is the bare minimum of legal planning you should have, but a living trust can also work to provide benefits to someone who is not legally considered your spouse. In the absence of a Will or other binding estate plan, on your death assets will pass according to the laws of intestacy; if you have children, to them; if not, then to your parents or their descendants. A partner has no automatic inheritance rights, but you can instantly overcome that issue by declaring your own instructions in a binding estate plan.
Medical: Texas law grants spouses the right to make medical decisions for each other under limited circumstances, but grants no automatic rights to partners. You can overcome this limitation by executing valid Medical Powers of Attorney in which you designate your partner as your primary medical decision-maker. At the same time, consider executing a Directive to Physicians relating to your legally binding instructions on artificial life support in case of terminal illness.
HIPAA: Federal law and regulations stop your medical providers from sharing your personal medical information without your permission. There are some minor exceptions that can create major confusion, so the right approach is to clear the road by signing a written authorization under HIPAA. You can authorize anyone you select to have access to your records so long as it is done in the correct legal manner.
Finances: If you become incapacitated, no one has automatic authority to handle your financial affairs. Even legally married spouses do not have automatic rights. This can be cured with a proper Durable Power of Attorney (do not use the state’s form; it fails to cover a number of important issues). In it, you can cover tax issues, bill paying, access to computer records and a wide variety of other important financial tasks.
Guardianship: If no other plans are made and if you become incapacitated, a guardianship may be the only solution. Spouses have legal priority to be each other’s court-appointed Guardian. You, too, can create a priority for your partner with a legal document called a “Declaration of Guardian”. Your choice is binding on the court so long as your choice is not in some other manner disqualified (like a person who owes money to you).
Funerals: Spouses have automatic legal rights to control the funeral of their deceased spouse, within limits the deceased spouse may have set. You can have the same arrangement by signing a Designation of Agent for Burial which gives your partner legal control over your funeral arrangements.
Obviously, there are many other legal issues that non-traditional couples can address. Do you own a house together? While there are no marital homestead rights, you can grant rights in a deed or in a trust or in your Will. Do you have bank accounts together? Plans can be made if you seek legal advice from a CELA and act on it. Do you have a child? A whole new set of issues arise when children are made part of a non-traditional family unit, but they can be addressed with proper legal planning.
Paul Premack is a Certified Elder Law Attorney practicing estate planning for all ages and probate law in San Antonio.
Original Publication: San Antonio Express News, May 20, 2012