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.