Today Judge Guy Herman of Travis County Probate Court Number 1 ruled that Texas ban on same sex marriage is unconstitutional. See the Order here. This ruling comes from a probate matter pending after one same sex spouse, Stella Powell, passed away from colon cancer without a will.  Her spouse, Sonemaly Phrasavath, sought to have their relationship recognized as a common law or informal marriage under the laws of the State of Texas.  On the other side, Powell’s siblings sought to inherit Powell’s property because they allege that Powell and Phrasavath were not legally married in Texas.

orderTexas Family Code section 2.401 provides that an informal marriage between a man and a woman may be proven by evidence that the man and woman:

  • agreed to be married;
  • after the agreement, lived together in Texas as husband and wife; and,
  • represented to others that they were married.

The Travis County Probate Judge declared those portions regarding man and woman and husband and wife of the Texas Family Code unconstitutional.

The battle of the siblings versus the surviving spouse comes before the probate court because Powell died without leaving a will.  If she had left a will, she herself could have determined who was to inherit her property.  But, without a will, Texas Estate Code section 201.001 dictates who inherits her property. If there is a legally recognized marriage between Powell and Phrasavath, then Phrasavath as the surviving spouse, would inherit all of Powell’s belongings.  If the marriage is not recognized as legal, then the siblings would be in line to inherit.

Ultimately, the ruling is very important to the spouse fighting to keep the property of her wife.  However, it has little effect on the legality of same sex marriage statewide.  The reason for this is because the Travis County Judge’s ruling merely declared the Texas law unconstitutional.  The federal ban on same sex marriage recognition stands.  So, Texas is not in the clear yet to grant same sex marriage applications based solely on this ruling.

The federal 5th Circuit Court of Appeals, which covers the State of Texas, is expected to issue a ruling any day on the appeal out of the San Antonio federal court which declared the federal and state laws banning same sex marriage.  ARgument was heard in January on the appeals pending before the 5th Circuit from federal courts in Texas, Louisiana, and Mississippi on the constitutionality of same sex marriage.  See Gay Marriage Bans To Be Heard In Federal Court. When that ruling is handed down, Texas will have more clear definition on whether same sex marriages can begin to go forward.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.