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Same-sex marriage makes spouses out of legal strangers

Estate planning will be a little less complicated for Michigan's same-sex married couples in the wake of the U.S. Supreme Court's decision in Obergefell v. Hodges. The state abolished the estate tax years ago, so nothing will change there. But the ruling allows same-sex marrieds to take full advantage of state laws that draw a line between a spouse and a legal stranger.

One of the arguments for same-sex marriage advocates has been that partners had no legal standing in one another's lives. The law treated them as strangers. If one died without a will, the other had about as much a right to the estate as the guy sitting next to him on the bus.

As legal spouses, though, they are protected by the state's laws of intestacy. If one dies without a will, the other is legally recognized as a surviving spouse. If there is no one else -- if, say, the deceased had no children and her parents died before she did -- the surviving spouse inherits the entire estate. If the couple has children that survive the deceased, the spouse will inherit the first $150,000 (adjusted for inflation) and one-half of the balance of the estate; the other half will be distributed among the children according to statute.

There is an alternative, but Obergenfell muddies the law here. Michigan recognizes the right of dower, a widow's right to the use of one-third of her husband's lands during her lifetime (The husband must own the land; leased land, for instance, is not eligible.) Even if the husband dies with a will, the widow may elect her dower right instead of the bequest in the will.

These are just a few of the estate planning issues that same-sex marrieds will have to consider moving forward. Because the law is changing, and because a mistake can be both financially and emotionally costly, it may be best to consult with an experienced estate planning attorney.

Source: Michigan Compiled Laws Annotated, Chapters 700 and 558, current through June 2015, via WestlawNext

Categories: Estate Planning

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