The Obergefell decision made same gender marriage legal in all states. But what about issues like divorce, death of a same-gender spouse, and so on?
Obergefell didn’t foreclose debate on the multitude of legal issues that arise from marriage.
“I felt that once there was some U.S. Supreme Court case or national
recognition of marriage that didn’t have any loopholes, everything would
be fixed,” Stanley recalls. “But Obergefell didn’t change the
fact that existing relationships have been through a roller coaster of
legal possibilities, and all those things are playing into cases at
dissolution time.”
It’s not just during breakups that these issues are emerging. They’re
surfacing when babies are born or adopted, when spouses pass away, and
when all the other life events that affect families take place.
Article here (via aba journal).
Showing posts with label EPIC. Show all posts
Showing posts with label EPIC. Show all posts
Tuesday, June 21, 2016
Monday, January 4, 2016
Planning for the inevitable: a short guide to Michigan's laws of intestacy
(Warning: This is a cross-post from the Estate Planning News in Michigan blog- which I also write. It's not a complete guide to intestacy laws, but the first in a series).
New Year's Day, and the season in general, is full of reflection on how to live a better life. This leads to the tradition of making resolutions.
One resolution many adults should have is to plan for the future, and if one thing in the future is certain, it is that either you will read my obituary, or I will read yours. (Sorry, but the old adage of "death and taxes" is true, sadly.) It's better to face facts, be prepared, and let your intentions get carried out after death. Otherwise, the state of Michigan will do your planning for you, through its laws of intestacy. (Intestacy means dying without a will).
Q: I don't have a lot of things to pass to other people, or much money to pay an attorney. But what if I care about a few important things?
A: Michigan's probate code (also called EPIC, the Estate and Protected Individuals Code) can be found at MCL 700.2101 (or find it here).
The intestacy portion begins with "any portion not disposed of by will . . . " This means that Michigan allows for a partial will. In other words, if you have a piece of property (real property- like the family cottage, or personal property -- an heirloom, or your speedboat) you can write a will to dispose of those "things," and leave the rest to be sorted out by a probate case after you die.
As far as the cost for an attorney to write your will, the costs can reflect how simple (or complicated) your issues might be.
Q: I have siblings that I don't get along with. Will they inherit from my estate?
A: It depends. If you have a spouse or children who live after your death (or "survive you" as it is legally termed), they will inherit first.
This assumes, of course, that you will have something for them to inherit after debts from your estate are left, as EPIC insists that costs, such as funeral expenses, be paid first.
If you have no spouse or kids when you die, your parents will inherit from your estate, if they survive you. Only once these potential heirs have inherited, will other descendants of your parents inherit.
However, it could possibly be that you die with your spouse, or shortly after, and that your parents are already deceased. The better thing to do, instead of leaving it to chance, is to write a will or partial will, that makes your intentions clear that your sibling (or whomever) will not inherit from your estate.
New Year's Day, and the season in general, is full of reflection on how to live a better life. This leads to the tradition of making resolutions.
One resolution many adults should have is to plan for the future, and if one thing in the future is certain, it is that either you will read my obituary, or I will read yours. (Sorry, but the old adage of "death and taxes" is true, sadly.) It's better to face facts, be prepared, and let your intentions get carried out after death. Otherwise, the state of Michigan will do your planning for you, through its laws of intestacy. (Intestacy means dying without a will).
Q: I don't have a lot of things to pass to other people, or much money to pay an attorney. But what if I care about a few important things?
A: Michigan's probate code (also called EPIC, the Estate and Protected Individuals Code) can be found at MCL 700.2101 (or find it here).
The intestacy portion begins with "any portion not disposed of by will . . . " This means that Michigan allows for a partial will. In other words, if you have a piece of property (real property- like the family cottage, or personal property -- an heirloom, or your speedboat) you can write a will to dispose of those "things," and leave the rest to be sorted out by a probate case after you die.
As far as the cost for an attorney to write your will, the costs can reflect how simple (or complicated) your issues might be.
Q: I have siblings that I don't get along with. Will they inherit from my estate?
A: It depends. If you have a spouse or children who live after your death (or "survive you" as it is legally termed), they will inherit first.
This assumes, of course, that you will have something for them to inherit after debts from your estate are left, as EPIC insists that costs, such as funeral expenses, be paid first.
If you have no spouse or kids when you die, your parents will inherit from your estate, if they survive you. Only once these potential heirs have inherited, will other descendants of your parents inherit.
However, it could possibly be that you die with your spouse, or shortly after, and that your parents are already deceased. The better thing to do, instead of leaving it to chance, is to write a will or partial will, that makes your intentions clear that your sibling (or whomever) will not inherit from your estate.
Wednesday, October 15, 2014
Incapacitated individuals and family law: who can file for divorce?
Q: Can a guardian or conservator file for divorce on behalf of an incapacitated individual?
A: Yes.The Michigan Court of Appeals has recently ruled on this issue. See In Re: Burnett Estate,
834 NW 2d 93 - Mich: Court of Appeals 2013.
If an individual becomes incapacitated, it's likely that he or she will then have a person acting for him or her. It could be a conservator -- who's in control of his or her finances, or a guardian -- who's in control of his or her personal decisions (like where to live, what doctors to see, etc.).
That guardian or conservator -- whether appointed by a court or selected through another method-- is allowed under Michigan law to file suit, and be sued on the incapacitated individual's behalf. (See Michigan Court Rules 3.202 (A) and 2.201 (E)). Under the Burnett case, that includes a suit for divorce (and, presumably custody).
In the Burnett case, a divorce was filed by the conservators of the Plaintiff. The Defendant later motioned the court for summary judgment, asking for the circuit court judge to dismiss the action, based on the case being filed by a conservator.
The circuit court dismissed the summary judgment motion, saying a conservator does have authority to file on behalf of an incapacitated individual. Other issues existed in the case. But once the case was decided, the Defendant appealed on multiple grounds, including the grounds that the conservator should not have been allowed to file, and that the circuit court should have granted the summary judgment motion.
The Court of Appeals disagreed with this ground of Defendant's appeal, and interpreted the Court Rules to allow for a divorce to be filed by a conservator or guardian.
"Had the legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of [the statute]." Burnett, at 97.
The circuit court dismissed the summary judgment motion, saying a conservator does have authority to file on behalf of an incapacitated individual. Other issues existed in the case. But once the case was decided, the Defendant appealed on multiple grounds, including the grounds that the conservator should not have been allowed to file, and that the circuit court should have granted the summary judgment motion.
The Court of Appeals disagreed with this ground of Defendant's appeal, and interpreted the Court Rules to allow for a divorce to be filed by a conservator or guardian.
"Had the legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of [the statute]." Burnett, at 97.
Have more questions about family law or estate planning (or the inter-twining of the two)? Ask me! Post your comments or questions on this blog.
Monday, October 6, 2014
How is an estate handled when a couple dies at the same time?
Q: What happens to estates when a married couple dies at the same time?
A: It depends.
Most states, including Michigan, have adopted some form of the Uniform Simultaneous Death Act. (Michigan's version is in the Estates and Protected Individuals Code, aka EPIC, since Michigan loves to give acronyms to the things it writes in legislative code.)
More information here (Wikipedia article) and here (Michigan legislative service).
For example, John and Mary are a retired couple who take a bus trip, and die an untimely death en route to their destination. Who will inherit the estate of Mary, Mary's family? or John's? What if John dies on the bus, but Mary lives in the hospital, and dies from complications one day later? Because if Mary died first, her estate would become John's, who then has the larger estate, (see the problem?) And: would an heir then "take" twice, once from the first to die, and a second time from the second to die?
The law, in the form of the Simultaneous Death Act, takes care of both problems. It determines for all those wondering who died first that they both died first. In this way, both sides of the family will take from their decedent's estate only one time.
Have other questions about how Michigan law treats your property when you die? Ask me! One of my specialty areas of law is estate planning, which includes wills and trusts.
A: It depends.
Most states, including Michigan, have adopted some form of the Uniform Simultaneous Death Act. (Michigan's version is in the Estates and Protected Individuals Code, aka EPIC, since Michigan loves to give acronyms to the things it writes in legislative code.)
The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance.
The Act specifies that, if two or more people die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others.
More information here (Wikipedia article) and here (Michigan legislative service).
For example, John and Mary are a retired couple who take a bus trip, and die an untimely death en route to their destination. Who will inherit the estate of Mary, Mary's family? or John's? What if John dies on the bus, but Mary lives in the hospital, and dies from complications one day later? Because if Mary died first, her estate would become John's, who then has the larger estate, (see the problem?) And: would an heir then "take" twice, once from the first to die, and a second time from the second to die?
Have other questions about how Michigan law treats your property when you die? Ask me! One of my specialty areas of law is estate planning, which includes wills and trusts.
Subscribe to:
Posts (Atom)