Common law marriages in Michigan (Novel notes in the law, part 42)

Q: My niece was living as a girlfriend to this man who passed away last week. He said he wanted to make sure she was "taken care of," while he was going through his last illness. He even told his best friend the same thing. They lived together for 7 years, or maybe more. Now that he's died, his family is kicking her out of their house, and telling her that she should be gone in 14 days. I thought that there was common law marriage in Michigan, so she should be covered as far as "being taken care of," am I right?

A: No, you are wrong. Your niece's situation presents three issues in three areas of law: 1. Family law 2. Probate Law and 3. Landlord/tenant law.

1.  Family Law.
It's a myth that there is any common law marriage in Michigan. It has not been a part of Michigan law for decades. As of 2011, there are only 16 states which recognize common law marriage. Michigan has not recognized common law marriage since 1957, so unless your niece has been with her boyfriend since then (7 years = no), or had the common law marriage recognized in a state which does allow common law, then this relationship will not give her status as next of kin, spouse, etc, as far as having any rights to the estate, or the house, etc.

But: Had the niece actually gotten married to the boyfriend this situation would be totally reversed, as she would most likely inherit the property, have the right to stay in the property, and share in his estate as spouse.

2. Probate Law / Estate Planning.
Telling someone that he wants  to "take care of her" when he is gone is not the same as having created a valid will or trust in Michigan which benefited your niece. The only way to make sure that someone is provided for out of the estate is to place those intentions IN WRITING (I can't emphasize that strongly enough), and observe the proper formalities of writing a will in Michigan (signed by the testator while in the presence of two witnesses). A verbal expression to anyone about how one's assets should be distributed means nothing, I am sorry to say.

3. Landlord/Tenant Law. 
I imagine that there was no lease from the owner of the property to the niece. In that situation, the law would treat the niece most likely as a month-to-month tenant. In that case, the family of the deceased should treat her as if they were the landlord, and give her proper notice as to when she should vacate the premises. This is done under the Summary Proceedings Act, which is designed to quickly restore the property to those who have rightful ownership (more information can be found here ). Most likely, the family of the deceased will need to give a 30-day Notice to Quit to your niece). 

Robin Williams' heirs, widow at odds over personal effects and cash from his estate

The widow and three adult children of actor Robin Williams are still at odds over the ownership of some of his personal belongings and the money needed to maintain his widow’s home.

Article here (via aba journal). 

Same gender couples: Who gets your stuff? (an estate planning Q & A Primer)

The issue: Michigan law currently does not recognize same gender couples. This is true regardless of how the relationship was formed, or whether the relationship was formed in Michigan or another state.

This means that decisions about to whom property should pass, or the person who can make health care decisions will become the "default" person under Michigan law. In other words, instead of letting a partner in a same gender couple make decisions, that power will then fall to next of kin.

  I am in a long-term same-sex relationship, what will happen to my property or assets when I die?
A: That depends. If you have a validly executed will, you can name the person to whom property will pass, otherwise, Michigan law appoints how it will pass through its laws of intestacy. This will be your blood relations, and will ignore any same-gender relationship, regardless of the length of the relationship, any verbally stated intentions, or whether that relationship is legally recognized in another state.

Q: My parents have always had a hard time recognizing that I have decided to live this way. What should I do to show that I want my partner to inherit I am gone?

A: You should get your intentions written into a estate planning documents (a will, trust, or other document). At a bare minimum, a will needs to appoint an executor (also known as personal representative), and determine to whom property will pass at your death. A will can also make it so that other people in your family won't inherit property, if that is what you choose.

Q: I think it would be better if my personal matters remain private. Is there a way I can achieve this?

A: Yes. You can create a trust.  A trust can operate to distribute your property while you are alive, or after you die. The advantage of a trust (over a will) is that it will not be part of public record -- wills are "probated" which will then become public record. Trusts are not.

Q: I am concerned about whether my partner will be listened to if I am hospitalized. Can my family - who have never been comfortable with our relationship - exclude him from seeing me?
A: The family will have to recognize your wishes if you write them into a health care power of attorney (also called Patient Advocate designation). This document will outline how you wish to have your body treated, who can make that decision for you if you become incompetent, and any other health care decisions. Without this document, that duty will fall to immediate family members.

Q: Can my partner make financial decisions if I become incapacitated?
A: Yes, but only if a financial power of attorney (POA) is executed. You can write a POA to either become valid when you become incapacitated (also called "Springing") or for it to become effective on executiion (called "immediate.") Without a financial POA, again, Michigan will allow blood relations to make those decisions instead, in spite of any perviously stated intentions.

Q: What is your recommendation?
I think it's essential for same-gender couples to talk with an estate planning attorney to determine what documents are needed. At a minimum, a will, financial POA, and health care POA should be written to show what each person had planned.

 

Elder law attorney accused of stealing from clients and estates pleads guilty, forfeits $3M

A New Jersey attorney known for her elder law expertise has pleaded guilty to money laundering.concerning a scheme that allegedly stripped senior clients and some of their estates of millions of dollars.

Barbara Lieberman, 62, also agreed to give up her law license, some $3 million in frozen assets and a BMW in her Monday plea in the Atlantic County Superior Court case, New Jersey Lawyer (sub. req.) and the Philadelphia Inquirer report.

Article here. 

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.

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. 

Families with Special Needs individuals and Future Planning

What happens when a family has a special needs individual, and they'd like to provide for the future of that person? Can that person inherit money? If they do, will they have access to medicaid, social security, or other government funds? It's essential that families with these concerns meet with an attorney to plan for the future. Contact me for more information, or come listen to a short (and free!) presentation on this topic. Email me for more details, and I hope to see you there!