Estate Planning Post-Obergefell: Advice for All Michigan Couples

same sex estate planning

There’s no doubt that the 2015 U.S. Supreme Court Obergefell decision legalizing same-sex marriage in all U.S. states and territories was a huge step forward for equality. Thanks to Obergefell, all married couples in the United States now have the same rights and protections under the law, regardless of gender. This has had broad implications for parental rights, taxes, and access to employee benefits.

Obergefell also has consequences for estate planning and probate in Michigan. The right to marry may no longer be defined by gender, but many existing state laws around marital property rights are still written with heterosexual marriage in mind.

Consider, for example, the issue of so-called dower rights. This is a Michigan statute stipulating a widow is entitled to one-third of her deceased husband’s real property that was acquired during the marriage. This right has a long history, dating back to English Common Law, and was meant to protect widows from falling into poverty at a time when men were the primary economic providers. It also prevented a vengeful husband from completely disinheriting his wife and leaving her destitute. Michigan is one of few states to still enforce dower rights and is the only state where widowers are not entitled to the same protections.

Dower rights are enshrined in the Michigan Constitution and were reaffirmed in the Estates and Protected Individuals Code of 1998. The courts also consider this to be, for the most part, settled law. Despite several legal challenges over the years, the state’s judges have continued to uphold dower rights. The 2008 Miltenberger decision set the most recent precedent, with the judge finding that, despite great strides, women in Michigan continued to have less economic power than men and needed the protection afforded by dower rights.

With Obergefell, dower rights in Michigan become problematic. While marriage is now not defined by gender, the same cannot be said for dower rights. They are only available to women – i.e. wives. But we now have a situation where a marriage can have, in addition to a husband and wife, two wives or two husbands. For the latter two marriages, who would, then, have dower rights when one spouse passes away? The question is simply not anticipated in the law.

Dower rights are just one example where the gendered nature of our state’s laws around marital property, probate, and estate planning may cause conflicts with Obergefell. These are also issues for all married couples, regardless of whether they are in a same-sex or heterosexual relationship. In light of Obergefell, traditional approaches to estate planning may not hold up as well, or could be invalidated by the courts in the future.

For example, some estate plans may factor in a wife’s dower rights to one-third of her husband’s real property holdings when he dies. As a result, the will may decrease the amount of personal property she inherits, such as cash, stocks and bonds, and retirement plans. If dower rights can now be questioned, this could put her in a seriously disadvantaged – and unforeseen – position if her husband dies.

It is always a good idea to review estate plans, wills, trusts, and related documents on a regular basis. In the wake of Obergefell, all couples should be doing this to ensure the changes ushered in by the landmark Supreme Court decision do not have unintended consequences.

Some of these issues can also be obscure, and it is advisable to seek experienced legal counsel if you have any questions about the plans you have in place. At Shelton & Deon we have years of experience guiding couples in planning for their futures, including the death of a spouse. We will work closely with you to ensure your loved ones are protected and your wishes respected. Please do not hesitate to contact us to discuss your unique situation.

Posted in Estate Planning & Probate, LGBT Law.