In a marriage, when one spouse dies or becomes incapacitated the surviving spouse is granted certain rights and preferences under the law. In Michigan, these rights include the guaranteed distribution of a portion of the deceased’s estate to the surviving spouse if the deceased did not leave a will. A spouse also holds the power to make medical decisions for an incapacitated spouse if another party has not been legally designated to do so.
In contrast, unmarried couples in Michigan, regardless of their level of commitment or the length of time they have cohabitated, do not enjoy the same legal status as a spouse.
If you have a life partner but are not married, the best way to protect the rights of your loved one in the event of your death or incapacitation is through estate planning. Within the estate planning process, there are multiple tools available to ensure that your grieving loved one will have the legal rights to direct for your care and to control and succeed to your assets.
• A last will and testament designates a personal representative, commonly referred to as an executor, who will be granted the power to administer your affairs. It also includes your instructions for asset distribution and names guardians for your minor children. While a will is a valuable tool to make your wishes known, it does not avoid probate court and, therefore, is public and can be costly and time consuming. If it is your intention to leave individually owned assets to your unmarried partner, the establishment of a revocable living trust is strongly recommended.
• A revocable living trust details your instructions for the timing, amount, and conditions of asset distribution. It also identifies a “successor trustee” who is authorized to act immediately, avoiding the probate court process and limiting the possibility that another party will be able to successfully challenge your intentions. For example, if you would like to leave your house to an unmarried partner, or even if you would simply like to protect his or her right to continue living in your house for a period of time, a revocable living trust can help ensure your wishes will be carried out. Another advantage to a living trust is that the contents remain private while a will becomes public through the probate process.
• A general and durable power of attorney designates a person to act on your behalf in legal and financial matters while living. By naming your partner as your durable power of attorney, you are giving him or her authority over your assets, either immediately or in the event of your incapacitation, without the expensive and lengthy delay of probate. It is typically effective immediately upon execution and terminates at death.
• A medical or health care power of attorney designates a person to make medical decisions for you if you are unable to do so. By naming your life partner as your patient advocate, he or she will be empowered to make medical and/or end of life decisions for you based on your preferences as communicated to him or her. It is also recommended that you sign a HIPAA certificate granting your chosen patient advocate access to your medical records if you should have an accident or suddenly become ill.