Catching the Gold at the End of the Rainbow: The Impacts of Retroactive Recognition of Same-Sex Marriage on Community Property Division


Poses two hypothetical questions that have become relevant in Texas post-Obergefell. Specific legal questions raised in this Comment include: (1) if a same-sex couple currently living in Texas was legally married in another state pre-Obergefell, what date should Texas use as the date from when they started accumulating community property; and (2) when does a same-sex couple who met the requirements of a valid common-law marriage in Texas pre-Obergefell begin to acquire community property? Second, this Comment provides a brief history of same-sex marriage in both the United States and Texas, as well as a background of the recent seminal United States Supreme Court case, Obergefell v. Hodges. Third, this Comment discusses marital rights for heterosexual couples in Texas, including the types of marriage the state recognizes. Next, the Comment explains available marriage alternatives for same-sex couples pre-Obergefell, namely civil unions and domestic partnerships. Fifth, this Comment addresses spousal property rights and property division for both opposite-sex and same-sex couples in Texas. Next, the Retroactivity Doctrine is described and applied generally to same-sex marriages in Texas. This comment then revisits hypothetical questions raised in Section II and analyzes potential outcomes of the two legal questions. Finally, the Comment suggests amendments to Texas’s statutes that are currently written to reflect a limitation of marriage in the state to opposite-sex couples.



Same-sex marriage, Marriage in Texas, Spousal property rights, Community property, Separate property, Common-law marriage, Obergefell v. Hodges, Division of marital property


9 Est. Plan. & Cmty. Prop. L. J. 263