Estate Planning Considerations for Same-Sex Couples

Same-sex marriage is a relatively new concept in Michigan, having only been legal since June 2015 when the U.S. Supreme Court ruled the Defense of Marriage Act unconstitutional. Couples can now marry regardless of sex and enjoy the same benefits that male/female couples do. However, regardless of the fact that Michigan law does recognize the rights of a surviving spouse when the other person dies, that does not dispense with the importance of estate planning for same-sex couples. This is especially true when considering the needs of one spouse when he or she becomes incapacitated. You should consult with a qualified attorney about the specifics of your estate plan, but here are the basics you should know.

Powers of Attorney

A power of attorney is a general term for an arrangement where a person, the principal, gives certain authority to another individual, his or her agent. In Michigan, there are two types of powers typically prepared as part of an estate plan.

  • Durable Power of Attorney: This document appoints your agent to handle designated financial matters on your behalf if you are unable to do so because of incapacitation. Spouses choose each other as their respective agents to manage assets that are not held jointly, such as a bank account or pension plan. An agent can also take such actions as filing tax returns, buying or selling real estate, and other personal transactions as stated in the document.

Without a power of attorney, you would have to get court permission to manage some of your incapacitated spouse's financial affairs. Petitioning a court to act as your spouse's guardian for these matters is expensive and time consuming. A power of attorney is simple to execute, as it only requires witnesses and notarization to become effective. Because it's "durable," the power ceases upon the principal's death.

  • Michigan Patient Advocate Designation: In some jurisdictions, Patient Advocate Designation is termed a "living will." It's the equivalent of a durable power of attorney, except that the agent takes over healthcare decisions when the principal is incapacitated. The patient advocate is empowered to make such determinations as agreeing to treatment and withdrawing treatment, including removal of life support devices. The specific powers and limitations are stated in the document.

As with financial matters, you or your spouse would have to go to court to get permission to make certain decisions on behalf of the other. Executing a Patient Advocate Designation ensures that your wishes are taken into account for life support, resuscitation, and other procedures that you may not want used for your treatment.

Contact an Attorney Experienced in Same-Sex Marriage

Even though same-sex couples face many unique challenges, there are still legal issues they must address just like any other marriage: Estate planning and planning for end-of-life issues is one of them. If you're a gay or lesbian considering your estate planning options, please contact the Bloomfield Hills, MI Law Offices of attorney Michael A. Robbins. Mr. Robbins has extensive experience in personalized developing estate plans to cover a variety of circumstances.