Monday, June 29, 2015

Impact of SCOTUS Ruling on Same-Sex Marriage in Texas Estate Planning and Disability Planning

On June 26, 2015, the Supreme Court of the United States (SCOTUS) in Obergefell v. Hodges ruled that all 50 states and the District of Columbia must issue marriage licenses and recognize marriages regardless of whether the spouses are both male or female.  In effect, this ruling guarantees equal protection under the law to same-sex couples concerning not only marriage, but the property rights and other legal presumptions arising from marriage.

As the majority of the Court’s justices have stated:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” – Justice Anthony Kennedy. (Please click on the name of the case above if you wish to read the entire opinion.)

LPV is ready to assist all couples in understanding their legal rights and obligations concerning estate planning – the method by which one passes one’s property to others upon death, through probate or non-probate means, as well as disability planning – the method by which one communicates one’s desires and instructions for addressing short-term or long-term inability to make legal or financial decisions for oneself. 

For example, you can choose to sign a written document designating who will make medical decisions for you and who can visit you in a hospital (Medical Power of Attorney); now, even if you have not done so, your spouse in a same-sex marriage will have statutory rights to do so.  You can also, by signing a Last Will and Testament or beneficiary designation, choose who will receive your property upon your death; now, your spouse in a same-sex marriage will have inheritance rights under state law.  Only spouses can “roll over” an IRA from the deceased spouse to their own IRA; now, your spouse in a same sex marriage can do so and avoid situations where required minimum distributions must start immediately, even if the surviving spouse has not reached 70 ½ years of age.

However, the universal recognition of same-sex marriage in Texas by various administrators and officials will likely be a rocky road, despite SCOTUS’ historic and unequivocal opinion.  Couples should review their estate planning and disability planning needs with an attorney so that they can take advantage of a variety of methods suited to their particular circumstances.

Attorneys and staff at LPV look forward to serving the needs of all married couples.

By: Cindy Veidt, 6/29/2015

Friday, June 12, 2015

Changes to the Texas Statutory Durable Power of Attorney Form

Effective January 1, 2014, Texas has adopted a new pre-approved form for its Statutory Durable Power of Attorney, a/k/a the power of attorney for your financial affairs. All forms must substantially comply with the new statute in order to remain effective.

Substantial compliance is always a tricky task. In order to avoid challenges that may be determined in a judge’s discretion, Texas residents should consider preparing a new statutory durable power of attorney that closely follows the specific statutory form now contained in Section 752.051 of the Texas Estates Code. We also recommend updating your estate and health care planning documents – including powers of attorney forms – whenever you have experienced a significant “life event,” such as the birth or adoption of a child, marriage, divorce, or the death of a relative or significant other.

Be sure to initial one or more of the options (marked A though N) on the new form; otherwise, you have not granted your agent any powers to act on your behalf. 

Additionally, if you want to be sure that you have granted your agent a “general power of attorney” – the ability to perform any and every type of legally permissible action in your place, as if he or she were you – you should include specific language to the effect that “this document shall be construed and interpreted as a general power of attorney and my agent (attorney-in-fact) shall have the power and authority to perform or undertake any action that I could perform or undertake as  if I were personally present.”

The former statutory durable power of attorney form (Section 490(a) of the now-replaced Texas Probate Code) contained this language; the new provision does not.

Because this financial power of attorney is a very powerful tool - and is also ripe for abuse by your agent under the wrong circumstances - we highly recommend that you consult with an attorney prior to signing this legal document, so that you are fully aware of the rights, responsibilities, and potential liabilities that can occur.

By: Cynthia W. Veidt,