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Paxton loses again on same sex marriage

Good.

Best mugshot ever

Turning aside objections from Texas Attorney General Ken Paxton, a Travis County judge approved an out-of-court settlement Tuesday that recognizes the eight-year relationship of two Austin women as a common-law marriage.

The settlement accepted by Travis County Probate Judge Guy Herman ended an estate fight between Sonemaly Phrasavath and family members of the woman soon to be legally acknowledged as her wife — Stella Powell, who died of cancer in June 2014.

Reached last week with the help of a mediator, the agreement divided Powell’s estate roughly in half between Phrasavath and members of Powell’s family. It also acknowledged Phrasavath as Powell’s spouse from a common-law or informal marriage — a legal distinction that doesn’t require a marriage license.

An Oct. 5 hearing has been set to formally declare Phrasavath as Powell’s heir due to marriage — the first common-law marriage finding for a same-sex couple in Texas history, lawyers said.

Lawyers for Paxton opposed the designation during a hearing before Herman on Tuesday, arguing that the settlement ended the legal dispute over Powell’s estate, making any decision about Phrasavath’s marital status moot and beyond Herman’s jurisdiction.

But Brian Thompson, Phrasavath’s lawyer, told Herman that his client would settle for nothing less than the recognition of her relationship as a valid marriage, particularly after the U.S. Supreme Court overturned state laws banning same-sex marriage in June.

“How many more courts have to tell Ken Paxton that these statutes (banning same-sex marriage) are unconstitutional?” Thompson said. “Apparently one more.”

See here for the background. Basically, the judge said that this qualified as a common-law marriage, and the state has no business getting involved, which let’s face it they would never do if it didn’t involve a same-sex couple. The AG’s office says it may appeal this ruling on the grounds that it may cause “confusion” and cause a lot of old probate cases to be re-litigated, but that seems unlikely.

Family law expert and University of Texas at Austin professor John “Jack” Sampson disagreed the settlement could reopen old probate cases: “If it’s a final, unappealed decision in any context … the litigants are bound and the litigants can’t reopen it.”

Both Sampson and Neel Lane, the attorney who represented two same-sex couples who challenged Texas’ gay marriage ban, said the settlement does not create any legal precedent for future probate cases of a similar nature.

“I think it will bring attention to (common-law marriage) but it will not be a legal precedent,” said Lane. “This was an unusual case. There’s not likely to be a great many of them.”

Attorneys like Lane who have clients in long-term same-sex relationships said they hope the case raises awareness among gay couples about their marriage options. After the Supreme Court’s ruling, same-sex couples can get married or, if their relationship meets certain requirements, they can register their common-law marriages with a county clerk.

That would allow couples to “back date” their marriages, perhaps avoiding future inheritance questions about assets accrued during their first years together, said Houston lawyer Ellen Yarrell.

I’m sure there will be couples that will take action based on this case, but I doubt it will cause the legal system any headaches. What it will do is make life just a little easier for those couples and their families. Surely even Ken Paxton can agree that’s a good thing.

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