The 2015 U.S. Supreme Court decision in Obergefell v. Hodges transformed the legal landscape for same-sex couples, granting them the constitutional right to marry nationwide. For Texas residents, this ruling fundamentally altered how state and federal laws apply to estate planning, probate, and property ownership. Here is what married couples need to know about these essential protections.
Changes to Inheritance Rights
Before Obergefell, Texas did not recognize same-sex marriages, meaning surviving partners had no legal standing to inherit property by intestate succession. The ruling granted same-sex spouses identical inheritance protections under the Texas Estates Code.
- Intestate Succession: If a spouse passes away without a will, the surviving spouse is legally recognized as an heir. For community property, if the deceased spouse had no children or all children were shared with the surviving spouse, the surviving spouse inherits the entire community estate.
- Homestead Protections: Under Texas Estates Code § 102.005, a surviving spouse has an absolute right to occupy the family homestead for the rest of their life. This applies even if the home was the deceased spouse’s separate property and title was inherited by someone else, such as children from a previous relationship.
- Statutory Allowances: Surviving spouses are entitled to request a family allowance from the probate court. This allowance provides financial support from the estate’s assets for one year following the spouse’s death.
Community Property Rights
Texas is a community property state. Obergefell ensures that same-sex spouses are subject to, and protected by, the Texas Family Code’s community property rules.
- Presumption of Community Property: All property acquired during the marriage is presumed to be jointly owned community property, regardless of whose name is on the title, deed, or account. This includes income, real estate, and most compensation acquired while married.
- Right of Survivorship Agreements: Spouses can legally execute community property survivorship agreements. This allows property to pass directly to the surviving spouse outside of the standard probate process.
- Informal (Common Law) Marriage: Texas recognizes informal marriages if a couple agrees to be married, lives together in Texas as spouses, and holds themselves out to the public as married. Same-sex couples can now legally establish a common law marriage, which retroactively applies community property rules to assets acquired during the duration of that informal marriage.
Spousal Tax Exemptions
The recognition of marriage equality ensures that same-sex couples benefit from both federal and state tax exemptions exclusively reserved for spouses.
- Federal Unlimited Marital Deduction: Under federal law, a U.S. citizen can pass an unlimited amount of assets to their surviving spouse without incurring any federal estate or gift tax.
- Portability of the Estate Tax Exemption: Surviving same-sex spouses can file an IRS Form 706 to elect “portability”. This allows married couples to share their estate tax exemptions by letting the surviving spouse retain and use their deceased spouse’s unused exemption amount.
- Texas Property Tax Exemptions: The Texas Tax Code extends ad valorem property tax protections to surviving spouses. For example, if a qualifying spouse over 65 or a disabled individual dies, the surviving spouse can maintain the deceased spouse’s school district property tax limit if they are 55 or older at the time of death. Additionally, surviving spouses of military members killed or fatally injured in the line of duty can claim a property tax exemption on the total appraised value of their residence homestead.
