True the same sex marriage is not recognized in Texas – in fact it is “barred.” That said, the law is changing. At this time, a number of states have instituted the bonds of matrimoney between gay or lesbian partners. However, other states refuse to accept the same sex union. That said, the couple will still gather property from their union. They will purchase a house together, or make investments together; they will be on the same checking account, or the automobile will be titled in both of their names. At its’ core, this is a partnership for the management of property. As a partnership, the property can be divided. From this perspective, the “partnership” can be dissovled in the same manner as any partnership. But unlike a hetosexual marriage, the division of property will not be considered through the lens of community property (no marriage in Texas, no community property). That is, the division of property is not determined by the “just and right” division of community property that is associated with the heterosexual marraige but is determined by partnership law and taking from the relationship that property which is held in an individuals name.
Further, if you have entered or are entering a same sex relationship in Texas you can execute a cohabitation agreement. This document will operate as a division of propery very much like a prenuptial or partition and exchange agreement works with heterosexual marriages. It is a legal document that outlines how assets, property, and debt should be divided when cohabitation ceases. It is there to protect property rights as to each spouse. It provides for an asset summary and sets out how any property aquired during the “marriage” should be divided in the event of separation.
A cohabitation agreement can be used by both heterosexual and homosexual couples.
Wills and Trusts – also consider this. In the event one of the partners passes away, a Last Will and Testament will direct how assets will be distributed upon death. The law is clear in Texas without regard to the same sex issue, the testators intent as to distribution of assests upon death shall be followed pursuant to a properly authenticated will. So, if one partner to the gay or lesbian marraige passes away the Last Will will control the distribution of property. The property will be left to the partner if the Will so directs. Further, like heterosexual partners, the gay couple should execute a durable power of attorney and health care power of attorney. The durable power of attorney is a legal document that allows one partner to manage the other partner’s assets in the event that partner becomes incapacitated. A health care power of attorney allows a partner to make health care decisions in the event a partner is unable to do so.