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.