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). 

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.)

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?

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.