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 intestacy. Show all posts
Showing posts with label intestacy. Show all posts
Tuesday, June 21, 2016
Wednesday, April 13, 2016
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).
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).
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.
Sunday, May 3, 2015
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.
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.
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.
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.
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.
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