2024 Election Impact: The Increased Importance of Texas LGBTQ+ Estate Planning In Advance of the Next Four Years

As a result of the 2024 election, the Republican party has secured a majority in both houses of Congress and the White House. Given the GOP’s staunch opposition to LGBTQ+ rights and the Supreme Court’s demonstrated willingness to unwind decades of legal precedent, many LGBT+ couples are understandably concerned that the next four years could see major rollbacks of their civil rights, including the right to marry a same-sex partner.  

Here’s the good news: there are estate planning documents you can put in place now to help ensure your relationship and your rights are protected from the vagaries of politics. 

Powers of Attorney

First up are powers of attorney. In Texas, and many other states, there are usually two types of powers of attorney, or POAs: one for medical decisions, and one for all other decisions. A Medical or Healthcare POA grants the person or people of your choice the power to make medical decisions for you if you’re unable to make them for yourself. For example, if you’re injured in a car accident and unconscious, this person would be able to consent to medical procedures and make similar decisions on your behalf. The State of Texas has created a Medical Power of Attorney Form that anyone can use and, if properly filled and executed, can serve this purpose. 

The second type of power of attorney is called a Durable Power of Attorney. The scope of authority granted under this instrument can be customized, but generally speaking, it authorizes someone to make decisions and act on your behalf regarding all non-medical decisions. "Durable" means that the document stays in effect if you become unable to handle matters on your own. (General or "nondurable" powers of attorney automatically end if the person who makes them becomes incapacitated.) With a durable POA in place, your partner or spouse will be legally permitted to take care of important matters for you, such as paying your bills and managing your property, if you're unable to do so yourself. Texas has also created a form Durable Power of Attorney. 

The bad news regarding the Durable POA is that Texas law automatically revokes it if a spouse was appointed as the agent and the couple divorces or the marriage is annulled or declared void. If the Supreme Court were to overrule Obergefell v Hodges, which legalized same-sex marriage in all states, it's currently unknown how Texas state law would treat same-sex marriages performed in the period when it was legal. It’s most likely that such marriages will remain legally valid, but going forward, whether to recognize new same-sex marriages would be left to the individual states. In that event, existing Durable POAs between spouses should remain valid and in effect without needing to be re-executed.  

However, it’s also possible, though less likely, that such a decision could result in the annulment of existing same-sex marriages in states where they were banned at the time of the marriage equality ruling. In that case, Texas law would also automatically revoke durable POAs between those spouses. Each “former” spouse would need to re-execute their durable POA in favor of their partner after the annulment date in order for the POA to be legally valid. 

Last Will and Testament

Another key document for any LGBTQ+ couple, married or not, is a Last Will and Testament. Some people mistakenly believe that if they are married, they don’t need a Will because Texas law says their spouse will inherit everything. However, relying on Texas’s default rules regarding inheritance is a risky and potentially very expensive idea for your surviving spouse. 

For one, should marriage equality be reversed, your partner may no longer be your spouse under Texas law, meaning that if you die without a Will, most or all of your property would end up going to some other member of your biological family. In the days before marriage equality, when one member of a same-sex couple died without a Will, the survivor could find themselves with nothing, while a sibling the deceased hadn’t spoken to in three decades inherited everything. Should those days return, a Will may be the only way for same-sex partners to inherit property from each other under Texas law. 

Secondly, if you die without a Will, the court procedures required to transfer your property to your inheritors are much more complicated, time-consuming, and expensive for your surviving spouse -- and that’s under the best of circumstances. With a Will, you can qualify your estate for the quickest, easiest, and least expensive version of probate. Most importantly, you can ensure that your assets go to the right beneficiaries and your wishes are followed. 

Like with the POAs, divorce or annulment of a marriage revokes any provision in a will that relates to the former spouse. In other words, if your will includes provisions for your ex-spouse, those specific provisions could be automatically revoked in the event of a marriage equality rollback. In that case, the solution would be the same: to re-execute the Will after the date of divorce or annulment. 

Other Important Documents

Finally, here are some other estate planning documents that every couple should have in place to ensure that their wishes are always given legal effect:

• Advance Healthcare Directive. This tells doctors/hospitals what medical care you do and don't want to receive if you are incapacitated and suffering from a terminal condition, including artificial life support or other life-sustaining measures. Many people refer to this as a "living will," though that's a misnomer. An Advance Healthcare Directive only covers a few broad categories of medical decisions; the Healthcare POA grants the power to make all other medical decisions. 

• HIPAA Authorization. This document authorizes your health provider(s) to share your Protected Health Information with the people of your choosing, ensuring they have access to your medical and insurance records. 

• Hospital Visitation Authorization. This document gives your preferred person(s) priority when it comes to visiting you if you are hospitalized. This is especially important if you are not legally married to a partner or want someone other than your spouse to have priority, such as a child or sibling. 

• Declaration of Guardian for Self. If you are legally incapacitated for an indefinite or permanent period, it may be necessary to have a guardian appointed to make decisions for you. This document pre-selects the person(s) you would want to become your legal guardian if you should ever need one. A guardian has powers similar to those covered in the Durable POA, but a guardianship can only be established through court action, whereas the durable POA doesn’t need court approval. With a few exceptions, your choice of guardian is generally given preference by the Court. You can also establish who should not be made your guardian, which is useful if you have a family member or close relative that you would not want to put in charge of your affairs.

• Declaration of Guardian for Minor. This document names a guardian for your minor child or children in the event both you and the child’s other parent pass away or are incapacitated for an indefinite or permanent period. A guardianship must still be established through a court process, but this document lets the court know who your choices for the guardian(s) would be. 

• Appointment of Agent for Disposition of Remains. This document allows you to leave instructions as to what to do with your remains and names the person legally responsible for ensuring those instructions are carried out. Your agent must accept this responsibility after your death and has a duty to faithfully carry out your directions to the extent that they are financially able to do so.

If you have questions or would like to learn more about the steps you can take today to protect yourself and your loved ones through comprehensive estate planning, schedule your free consultation with estate planning attorney Caleb Patterson with just a few clicks via this link.