Thursday, May 24, 2012

So You're Going to Live Together and Not Get Married

By: Carole L. Chiamp

When a couple marries, the best gift they get is a bundle of rights and benefits they receive just by marrying. Those rights come to them only by marriage. If a couple chooses to live together without benefit of marriage the only way to get some of those benefits is to try to replicate them by private agreements.

The bonanza of benefits to married couples include rights of inheritance, the right not to be excluded from a spouse’s will, the right to sue for the other’s wrongful death, being able to hold property as tenants by the entirety, the right to social security benefits through a spouse, the right to file a joint tax return.

Many rights that married couples enjoy can be replicated by contract and estate planning. Others, however, remain out of reach. For those who choose not to marry or who cannot marry, private agreements can minimize the gap between their protections and those of their married counterparts.

Issues Needed to be Addressed:

1. How to live together?
2. What happens upon death?
3. What happens on separation?

Real Estate:

Married couples who purchase a home usually take title as tenants by the entireties. Should one die the home automatically goes to the other by operation of law. Not so for an unmarried couple. Unmarried couples need to find a way, without rights of survivorship, or by an agreement which may be enforceable should one die or both decide to separate.

Personal Property:
As with real property, this too can be handled by an agreement in advance.

The time to plan for the separation is in advance by written agreement as the law gives no assistance for spousal support and division of property to unmarried couples.

Life and Death:
Unmarried partners would be wise to have a will. They may also need a trust, patient advocate designations and durable powers of attorneys.

Each time the census is conducted more and more categories involving children must be dealt with. There are now categories related to householders, adopted children, stepchildren, foster children and grandchildren. There’s now also a listing called unmarried partner.

When it comes to children the state is more likely to protect the child. Unmarried parents have the duty to support the children regardless of marital status.

The Michigan statute covering adoption has mostly been interpreted to not allow adoption by an unmarried couple. In the event of a child being adopted by one member of a gay couple, there can be serious issues regarding support by the non-adopting person. The adopted children’s right of inheritance is the same as a birth child.

For those who choose to commit to one another without marriage nothing substitutes for reviewing all options and having a plan. Once the plan is clear, obtain the necessary documents to execute the plan.

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