The legal community is, at times, either uninformed or ill-equipped for dealing with the unique needs of LGBTQ+ clientele. Rocky Dhir welcomes Liz Brenner to discuss her article in the February 2023 edition of the Texas Bar Journal and the evolving legal issues faced by those in the LGBTQ+ community. Liz explains the impacts of the 2015 Supreme Court decision in Obergefell v. Hodges, which required states to extend equal access to marriage to same-sex couples, and also dives into the specifics of estate planning and probate law for these couples and their families.
Elizabeth Brenner is an attorney with Burns Anderson Jury & Brenner in Austin, where she practices probate and trust litigation, probate administration, and guardianship law.
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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.
Rocky Dhir: Hi, and welcome to the State Bar of Texas Podcast. So, a client walks into your office with his mother and tells you that he needs help drafting her will. “Who will be the primary beneficiary of your mother’s estate?” you might ask him. His reply, “My mom.” Now, there was a time when this scenario would sound like some kind of riddle, a trick question, if you will. But there will come a day when the story like this will play out without the lawyer giving a second thought. Obviously, this client has two mothers. Two members of the same sex marriage who had a son together. Oh, and one of the moms is the client’s biological father. Twenty years ago, maybe a little zany. Today, completely within the realm of possibility. Arguably, we are in the nascent phase of an era of same-sex marriages, at least in Texas, but after the US Supreme Court’s Landmark decision in Obergefell in 2015. The day will likely come when such relationships will be readily recognizable.
As lawyers, are we fully prepared to serve clients in the LGBTQ+ community? Now, you might be thinking, Rocky, I do work with corporate clients. This doesn’t affect me. Okay. But what if a trans person from that company needs help with a contract or a will or a marital contract, do you know how to draft documents that take gender transition into account? Or do you at least know what questions to ask so that you can find the right referral for that person?
Elizabeth Brenner is a named partner at Burns Anderson Jury & Brenner in Austin, where she specializes in probate and trust litigation, probate administration, and guardianship law. Liz is the author of Estate Planning and Probate for Same-Sex Couples, an article in the February 2023 Texas Bar Journal. For lawyers who want to evolve and adapt to societal and business changes, I highly recommend reading this article, but even better, we have Liz here with us to offer some insights and discuss some of the issues that the article covers. Liz, welcome to the podcast.
Elizabeth Brenner: Hi, thanks for having me.
Rocky Dhir: Absolutely. What a pleasure to have you in. Look, let’s just jump right into this. All right. When did you first realize that the legal community might be a bit ill-equipped or maybe just uninformed about the specific needs of LGBTQ+ clients?
Elizabeth Brenner: Well, these are evolving issues. As you mentioned the Obergefell decision in 2015 changed things dramatically in the legal landscape. I think it’s something that is requiring ongoing information and education. It’s a ongoing education process for me since the laws have changed so much since I’ve been licensed. It’s an ongoing evolving process for, I think, all the lawyers out there.
Rocky Dhir: Was it when the decision came out that you first kind of said, hey, this this could have some issues or did it take a little time for it to kind of germinate a little bit for you?
Elizabeth Brenner: I have been working on LGBTQ-related legal issues since I graduated law school in 2003. Obviously, marriage equality ruling had a huge impact on the legal issues and the legal landscape. I think at that time, there was a stark change in the laws that required a better sense of all the lawyers out there.
Rocky Dhir: I know in Texas, the issue of same-sex marriages is maybe not as evolved as it was in some of the other states where it was allowed earlier, states in, say, New York. Are we borrowing a lot from those other states or are we kind of creating our own set of rules and our own set of laws as we move forward?
Elizabeth Brenner: The laws are essentially, in terms of marriage, are universal across the country in that all states have to recognize same-sex marriage on the same terms and conditions as heterosexual marriages. The laws in Texas that apply to opposite-sex couples are and should be exactly the same as that apply to same-sex couples and because marital laws widely differ from state to state, it would be a little different in Texas than in other states.
Rocky Dhir: Now, maybe educate us on how this played out prior to the decision. I’ll tell you, as an aside, I don’t know, is it Obergefell or Obergefell? I’ve heard it several different ways and at some point I’m just going to say Bob because I have no idea.
Elizabeth Brenner: I think that’s a valid question. I pronounce it Obergefell, but I’ve also heard it said many different ways. I’m just going to continue to say Obergefell.
Rocky Dhir: Obergefell. All right. I’m going to try to make sure I do this consistently. If not, it’ll be inconsistent and that’s okay because people do that with my name all the time. When it comes to the issue of full faith and credit for marriages, before Obergefell, how was Texas treating same-sex marriages that happened in other states?
Elizabeth Brenner: It wasn’t. Texas did not recognize same-sex marriages at all until it was forced to in 2015 by the Obergefell rule. In fact, it was written into our Constitution that same-sex marriages are not to be legally recognized.
Rocky Dhir: And now, as a result of the federal ruling, it’s something that has to be done from a constitutional perspective.
Elizabeth Brenner: Correct.
Rocky Dhir: Now, let’s talk about clients who might not be familiar with LGBTQ+ clientele. As a lawyer, could I not just refer out all LGBTQ+ clients and say, “Hey, I’m not going to worry about this. Call Liz Brenner and she’ll take care of you. I have no idea how to deal with you.” Is that not a solution? I mean, why should we educate ourselves in how to how to address those issues and I’m saying that a bit tongue-in-cheek, of course, but I’d like to get your thoughts on why you think all lawyers need to be more aware of this particular client base?
Elizabeth Brenner: If you look at just laws on marriage, it is so integrated to every part of our lives and the legal landscape that it impacts all areas of the law. If you, for example, practice insurance defense and marital relationship impacts who potentially your clients are and your client’s legal rights. If you do real estate litigation, obviously, marriage impacts the rights of a couple to a piece of property, if it was community property or a separate property. It basically impacts all areas of the law, because marriage itself has so many benefits and rights and obligations under state law and federal law. Even if you just talk about LGBTQ rights with respect to marital relationships, it impacts and affects so many areas of the law that you need to have some understanding of how it works for people who are LGBTQ.
Rocky Dhir: When we come back, we’re going to talk a bit more about LGBTQ+ clients and how best, we as lawyers can address their needs, and we’re going to get a little bit more into that. First, we’re going to hear from one of our sponsors so we’ll be back with Liz Brenner in just a couple of seconds.
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Rocky Dhir: And we’re back. We’re back with Liz Brenner talking about how we as lawyers can better serve LGBTQ+ clients. Now, Liz, I know you work primarily in the estate planning and estate litigation and probate context, but in your article in the Texas Bar Journal, you talk about common law marriages and the specific issues that might arise for the same-sex couples when it comes to common law marriages. Can you elaborate a bit more on that? Tell us how that that impacts that community more than it does opposite-sex marriages.
Elizabeth Brenner: Yeah, absolutely. I think there are two pieces of that that are relevant for the State of Texas legal landscape. Particularly, one is the community property regime in Texas and the second is common law marriage in Texas. Because we have common law marriage, meaning that a couple can be married through an informal process of meeting the requirements of living together as spouses, holding out the spouses and agreeing to be spouses, that can actually create a marriage that is retroactive from the time of marriage equality.
Essentially, common law marriages can exist prior to the Obergefell ruling in 2015. Couples, many same-sex couples have been together 10, 20, 30, 40 years, long before it was a legal possibility to be married in Texas, but they live their lives just like any other married couple and could probably meet the elements of common law marriages. Many same-sex couples had ceremonies prior to marriage being legally recognized. And so, if they met those elements, even though it was prior to the Obergefell ruling, it is possible to establish a marital relationship going back to the time in which they met the elements of common law marriage.
Rocky Dhir: My constitutional law is admittedly a bit rusty, but I thought there was a provision that says you can’t have ex post facto laws, and so, wouldn’t that kind of step in to say, “Hey, you had no rights prior to Obergefell. Now suddenly, there’s these rights, so we can’t go and impose common law marriage on you since that didn’t exist in Texas prior to the decision.”
Elizabeth Brenner: My understanding is that laws that violate the Constitution are void ab initio. They’re void from the start. If that is the case and many courts have ruled that it is the case, even with regard to same-sex marriage, then that marital relationship could have started prior to 2015, because that law that stated same-sex marriages were not recognized has always been unconstitutional.
Rocky Dhir: That’s interesting because now you’ve got — it’s almost like members of the LGBTQ+ community might actually, in theory, be arguing against the imposition of common law marriage under the ex post facto clauses, and then you might have opponents of same-sex marriages coming out and saying no, it’ was void ab initio. It’d be interesting to see if the sides kind of switch on that particular legal issue. I think that would be kind of fascinating and maybe pertaining from a really nerdy perspective, but that’s interesting because I guess as I’m thinking through it, and this is a fascinating discussion. If it was void ab initio but as a same-sex couple, you weren’t aware of it and you didn’t know you had those rights, then can the obligations of a common law marriage be foisted upon you? I don’t expect you to answer the question. I would just be interested to know your thoughts on that.
Elizabeth Brenner: I’m sure it’s come up within the context of divorce among couples. I mean, the common law marriage certainly comes up within the context of divorce among heterosexual couples. One member of the relationship could say they were married by common law. The other says, they were not. Now the law applies the same both to opposite and same sex. It certainly can come up and I’m sure it has come up many times within the context of a divorce among same-sex couples.
Rocky Dhir: In your article, you actually talked a bit about a same-sex couple, the scenario at least is a same-sex couple gets married after Obergefell, but it turns out one of the members, or maybe both of the members of the marriage had relationships prior to the marriage that might be deemed common law marriages. And now, suddenly, they’re now legally recognized same-sex marriage is void, because it turns out they had a common law marriage prior to getting married to this other person. That was what really fascinated me.
Have you seen this occur? Is this something that is actually arisen in your practice? Or is this right now still in the realm of possibility that we’re gearing up and getting prepared for?
Elizabeth Brenner: Some states, not Texas, but other states prior to Obergefell and prior to the state providing marriage for all couples, had domestic partnerships or civil unions which was a regime in which they provided some benefits of marriage, but not marriage. Some of those states, when they legalized same-sex marriage, they automatically converted those relationships to marital relationships and if people didn’t dissolve them and then later remarried, there might be some legal complications there.
Rocky Dhir: But as you said, that doesn’t occur in Texas, but could–
Elizabeth Brenner: No, Texas has not ever recognized any civil unions or common law marriages but if someone is living out of state, and that circumstance to place, it could be potentially complicated. The conversion from civil unions to marriage and then they move to Texas, there could be potential complication
Rocky Dhir: That raises another interesting legal issue, because if it’s in the Texas Constitution that you don’t recognize the same-sex marriage, but now you have to give full faith and credit. Prior to Obergefell, there was no full faith and credit, so Texas didn’t recognize a civil union, but now suddenly, Texas has to recognize a civil union for purposes of enforcing the civil union even though these people got married in Texas in order to actually have a marriage under the law. I can see this becoming very complicated and convoluted. Have you come across these issues in your own practice or are we sort of bracing for the day when that occurs?
Elizabeth Brenner: Yeah, there’s one piece of that, that I just want to clarify. It’s the conversion of civil union or domestic partnership to marriage by the state, let’s say the state of Washington, automatically converted. Once that happens, it is a marriage and because of full credit, Texas has to recognize that marital relationship but Texas does not have to nor does it recognize something that is just a civil union or domestic partnership.
Rocky Dhir: As a matter of Texas law, this couple was not married until Obergefell came out and then that other state has had, I guess what you call trigger laws. As soon as Obergefell happened, they said, “You’re now married and no longer in a civil union. Now, Texas has to give full faith and credit.” That’s the mechanics of how this plays out. I’m glad we’re having this discussion because I don’t a lot of these mechanics, I don’t know if there was enough room to explain all this in your article, but this is interesting. I’m learning a lot, so thank you.
Elizabeth Brenner: It’s super interesting and could potentially be quite complicated. You have to sort of trace the relationship history of the client in order to make sure that none of those issues come up.
Rocky Dhir: Let’s talk for a moment in a same-sex marriage now, now that it’s a full marriage under the law. How do you handle, and if you’d not handled this in your own practice or you’re not familiar, then forgive me? But from a family law perspective, how would you advise clients to establish a parent-child relationship. What I’m thinking of here is maybe one member of the couple is a biological parent. Actually gave birth to the child. The other one is wanting to be a parent but they’re not the ones that actually gave birth. There’s no DNA involved. Maybe you have a second scenario where there’s some kind of surrogacy you and then a transition to a different sex, or you’ve got a situation where they’re both adopting. In that situation, how would especially now that we’ve got a marriage involved, how do you make sure that both members of the couple have equal rights when it comes to child custody and can be treated fairly under family law?
Elizabeth Brenner: That can be a little complicated.
Rocky Dhir: I imagine! THAT’S why I’m asking you.
Elizabeth Brenner: What I would do is the non-biological parents would have to adopt a child, and at that point, once the adoption is complete, they would have all the rights of any other parents. The adoption process or the question of adoption can become interesting when one parent is using the egg of another parent to give birth to the child. At that point, it can be a little complicated. I don’t handle those kinds of situations but it’s always necessary for same-sex couple to ensure that both parents have legal rights as parents, and that could require, and usually requires the non-biological parent to adopt.
Rocky Dhir: But then, I wonder, and this might become an interesting question, I’m not expecting you to have the answer to this, but as a matter of Texas Family Law, then, you’ve got an adopted parent and a biological parent, both of whom have custody and rights over the child. But in the event of a divorce where the same sex couple separates then it’d be interesting to see, will the Texas Courts apply a simple best interest of the child analysis or will they give preference to the biological parent as a matter of law. I don’t know if you’ve anything or if you come across that question, but I’d be very curious to see how Texas Family Courts handle that issue.
Elizabeth Brenner: That’s interesting. I don’t practice family law so I haven’t come across that but once an adoption takes place that parent is supposed to be treated just like any biological parents technically so I said I would hope that that’s how they were treated by any court of law.
Rocky Dhir: I would agree. This might be another article that perhaps a family law practitioner can weigh in on. Texas Bar Journal. If you’re listening we need a follow-up to this on from a family law perspective. Now we’re going to be back in just a couple minutes. We are going to talk when we come back with Liz about transgender clients and your article, I know Liz, talks about that a bit. We’re going to dive a little bit more deeply into that. But first, we’re going to hear from another sponsor. So, sit tight, we’ll be right back.
And we are back with Liz Brenner. We are learning everything about LGBTQ+ clients and what I think we as lawyers just don’t seem to fully grasp yet. In your article for the February 2023 Texas Bar Journal, you talk not just about same-sex marriages, you also talk from an estate planning perspective about transgender clients and some of the issues that they might face that a lot of us might not be aware of. Reading your Article, I had to think to myself, because you talk about pronouns and changing pronouns for somebody who might have gone through a gender transition. First of all, let’s talk about why you believe the pronouns are important from an estate document perspective?
Elizabeth Brenner: Yes! When we’re drafting estate documents, one of the things we’re doing is thinking about possible problems down the road, and drafting with that in mind to avoid those problems that could come up.
Rocky Dhir: You mean, like a will contest, like that kind of problem?
Elizabeth Brenner: Exactly. Any sort of litigation down the road that could come up because the will is ambiguous or doesn’t properly identify the beneficiaries and within that sort of framework and talking about LGBTQ clients, one thing to think about are those clients that are transgender or those clients that have transgender children or family members who they intend to gift something to.
And so, to avoid any potential problems that arise, it’s important to properly identify people in your will. If you get everything to Harry, who is your son, and Harry becomes Harriet’s, right? And the will identifies Harry when you die, there is a potential problem that might need to be clarified by a court and we want to avoid that at all costs, so you update your will so that you properly identify in this scenario, your child. Or, the other circumstance is if you are Harry and you’re leaving everything to whoever and you transition, you have a different name, a different pronoun, you want to make sure that your will reflects the updated information just like you would update your will through time as your life changes.
Rocky Dhir: Now, wouldn’t the courts be able to determine that okay, in 2023, that this will was drafted in 2023 and it’s referring to a beneficiary named Harry. Then, at some point down the road, Harriet is able to prove that she was Harry in 2023. Is that not a simple a simple function in the probate courts or is there a pretty real possibility of that getting gummed up and causing a lot of consternation to the parties?
Elizabeth Brenner: Yeah, the hope would be in that scenario, there would be a simple way to address it in court. However, when parties fight, which just happens, that could be another issue to fight over, and because you want to avoid having any issue with your will having to be interpreted by a court, because there is a potential for conflicts there, you want to make sure and update it so that it’s not an issue or a potential issue and quite clear in your will.
Rocky Dhir: For transgender clients who are writing their wills, so, when you want to update your will later and what I’m thinking about here is just the expense involved. If you’ve gone through the transition, you went from Harry to Harriet and now you have to pay a lawyer to go back and fix everything. That’s not cheap. That’s real money being spent. Do we not have a simple document or form for transgender clients to be able to maybe use it to amend their wills and make it really simple, something that they can just feel out as a pro forma saying, “All right, I was Harry Smith. Now, I’m Harriet Smith,” and everything that refers to Harry is now Harriet. Is there no way to do that currently under Texas law?
Elizabeth Brenner: Texas law doesn’t allow for a codicil, so you could draft a codicil to your will, but wills these days are in word documents, drafted and those are easy to update and rather than having 20 codicils to will, it’s generally easier just to update the word document and sign it.
Rocky Dhir: I assume that doesn’t take too long for you as the estate lawyer to draft up for them.
Elizabeth Brenner: It generally depends on the nature of the changes, but if you’re just changing a name, that shouldn’t take too long.
Rocky Dhir: For the clients themselves, if somebody is coming in from a legal standpoint, do they get to choose their pronouns or is there a definition or maybe a standard of practice for how you determine a client’s pronouns for estate documents for those —
Elizabeth Brenner: That’s a great question. I think the pronoun question is evolving. What I do is I just ask a client if it’s not readily clear from our initial conversations or what the initial information they provide me. If I’m not clear about it, I just ask and clients are more than happy to clarify.
Rocky Dhir: But if Harry comes in and says, “Look, I identify as female and I’m planning on going through the transition, identify as female. I’m Harry Smith. I want my pronoun to be she or hers throughout my documents.” As an estate planning lawyer, do you feel comfortable putting that in there or do you make a specific declaration in the will that Harry has preferred pronouns? How do you do that to make sure that you avoid confusion down the road for somebody who may not know Harry?
Elizabeth Brenner: That’s a great question. I haven’t come across that yet. Let me think about what I might do. I think every attorney might handle it differently, but I would want to be clear in the document so that courts are third parties wouldn’t be confused and that’s what I would recommend that until there was a formal legal change, I would keep it personally. This is just me. I would keep the pronoun that is legally accurate.
Rocky Dhir: Now, that brings up another question that I thought this might be something that a lot of lawyers might be confused about. Honestly, I don’t know that there’s an answer, but I wanted to get your thoughts on this. Is there either illegal or a medical standard for when a person’s biological sex has officially changed. I’m thinking about people that are currently in transition. Harry comes in, Harry’s about to start the transition, Harry dies in the middle of the transition. Now, when did Harry become Harriet or has Harry become Harriet, that becomes a potential question and has Texas law got any kind of — I don’t know that there would be a solid answer but is there anything that gives us some insight into how to handle that transition question?
Elizabeth Brenner: That’s such an interesting question. Obviously, from a medical perspective, I have no idea. But from a legal perspective, I would expect you would need the legal documents that has the official court order that changed the gender marker from previous gender to new gender.
Rocky Dhir: I guess presumably then under that, until you get that court order, the biological at birth gender would continue to apply.
Elizabeth Brenner: I would expect so.
Rocky Dhir: All right. That at least gives me some comfort in knowing that there’s something that you can use as some kind of a marker because when I was reading your article. I thought, how do you know when that happens? But it sounds like there’s at least something that we can rely on as practitioners when faced with that issue.
Elizabeth Brenner: Yeah. But like I said before, I think that is one of the things that is evolving. I would be curious to know how that plays out. I imagine that there’s many arguments to be made that you don’t need a court order for that to be the case.
Rocky Dhir: Lot of interesting questions. I think your article raised more questions than it answered and that’s the sign of a great article. Liz, we are out of time for today but this this sounds like something that that we were going to be hearing a lot more of in the coming months and years. I want to thank you for taking the time to join us. I also want to thank you for bringing this issue to all the Texas lawyers through your article. Again, thank you for being here and thank you for bringing this front and center to our attention.
Elizabeth Brenner: Thank you. It was a lot of fun.
Rocky Dhir: And, of course, I want to thank you for taking time to tune in and I want to encourage you to stay safe and be well. If you like what you heard today, please rate and review us in Apple Podcast, Google Podcasts or your favorite podcast app. Until next time, remember life’s a journey folks. I’m Rocky Dhir, signing off.