One year (almost) post-Obergefell and states are still unsure which laws to enforce

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). 

LGBT Ballot proposal withdraws campaign - due to financial concerns

The proposal to add civil rights for LGBT people to Michigan's constitution will no longer aim for the 2016 ballots, its organizer announced during a taping of public television show Off The Record Friday morning.

Article here (via mlive). 

The Dignity of Gay marriages was part of SCOTUS decision: Will that bring about "dignity codes" which are against the First Amendment?

A George Washington University professor says "perhaps."

Article here (via aba journal).

George Washington University law professor Jonathan Turley says the opinion recognizing the dignity of gay marriage could pave the way for dignity codes that trump free-speech rights.
Turley says “the most direct way” the majority could have upheld a right to gay marriage in Obergefell v. Hodges would be to find that sexual orientation is a protected class under the 14th Amendment’s equal protection clause. That would have made a refusal to issue gay-marriage licenses illegal discrimination, and would have clarified the standard in areas such as employment discrimination and refusal of public accommodations, Turley says.

Just in case: Ottawa County clerk's plan to alter marriage license form if Supreme Court overturns Michigan gay marriage

The Ottawa County clerk will manually update marriage forms to accommodate same-sex couples in the event the U.S. Supreme Court overturns Michigan's gay marriage ban. It's not clear if Kent County's clerk, or some others around the state, will take the same step.

Article here (via mlive). 

The Supreme Court is expected by the end of the month to rule on whether Michigan's 2004 voter-approved gay marriage ban is constitutional.
County clerks say they will comply with the court and issue marriage licenses to same-sex couples if the court overturns Michigan's law. But they may not have updated paperwork right away.

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.

 

Judge orders Michigan to recognize hundreds of same-gender marriages

A judge has ordered the state of Michigan to recognize about 300 same-sex marriages performed during a brief period last year when such unions were legal.

U.S. District Judge Mark A. Goldsmith, ruling in favor of eight same-sex couples Thursday, said those marriages are valid, the Associated Press, the Wall Street Journal (sub. req.) and others report.

The marriages were performed in four counties during a brief period last March after a different federal court judge struck down the state’s gay marriage ban. The Cincinnati-based 6th U.S. Circuit Court of Appeals later suspended the decision and reinstated the ban.

 The judge, however, stayed his ruling for 21 days to give the state an opportunity to appeal.

Article here (via aba journal). 

Federal Apeals Court extends stay on same gender marriages

The nearly 300 same-sex Michigan couples who got married last weekend will face a longer wait to learn whether their vows will be legally valid.

Article here. 

The 6th Circuit Court of Appeals on Tuesday extended a stay on last week’s ruling by U.S. District Court Judge Bernard Friedman that struck down the Michigan’s ban on same-sex marriage.

The 2-1 ruling, issued late Tuesday afternoon, means the case will have to make its way through the appellate court, and likely the U.S. Supreme Court, before the couples know whether their marriages will be legally recognized.

Does allowing a name-change on a driver's license amount to "recognition" of same-gender marriage?

From the Detroit News: 

A provision of the Michigan Constitution that voters approved in 2004 bans same-sex marriages, so Jesse Sherman and Derek Melot went to New York to get married in October.

But later, when Jesse Melot went to two Michigan Secretary of State offices with his marriage certificate, seeking to have his new name put on his driver’s license, clerks in both offices declined to do so.

Although he could spend money to have his name changed legally, married people normally can do that just by showing a marriage certificate.

Article here.

Michigan Attorney General to County clerks: Don't issue same-gender marriage licenses

Update: a Federal district court judge was expected to issue a ruling at a hearing October 16 about whether Michigan's same-sex voter ban was constitutional. He delayed giving a ruling, opting instead for scheduling an expedited trial. Article here.

In the mean time, the Michigan Attorney general Bill Schuette warned county clerks not to issue marriage licenses to same-gender couples, article here. 

Same gender marriage: today in Michigan?

Clerks in at least 10 of Michigan's 83 counties are prepared to issue marriage licenses this week if US District Court Judge Bernard Friedman strikes down the state's voter-approved ban, according to this MLive report. Clerks in Bay, Clare, Delta, Ingham, Isabella, Lapeer, Midland, Oakland, Tuscola and Washtenaw counties indicated that they are ready to begin issuing licenses immediately after a ruling.

Full article here. 

So that means that if a federal judge this week strikes down a voter-approved ban on same-sex marriage in Michigan, same-gender marriages could be legal in Michigan, at least until a higher court says otherwise, which could be only a matter of hours or days. 

What's the tax ramification for a same-gender couple?

In August of this year, the IRS issued a ruling (Notice 2013-61) that rules that same- gender couples
legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

:For More information: IRS.gov