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
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
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.
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
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
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.