LGBTQ Family Protection Planning in Michigan
In the current political climate, incapacity and after death planning is critical for LGBTQ couples and families. Whether you are married or unmarried, raising children or planning for the future, thoughtful legal planning ensures that your wishes are honored, your partner is protected, and your family’s security is never left to chance.
Unfortunately, marriage equality can no longer be taken for granted now. Married couples cannot rely on various laws that privilege spouses, such as in medical settings or probate court. A comprehensive LGBTQ estate plan offers peace of mind by putting important decisions in your hands rather than leaving them to default state laws or the courts.
Wills and Trusts: Directing Your Legacy
A Last Will and Testament allows you to clearly state who will represent your estate in probate court (your Personal Representative or Executor) and who will inherit your property. Without a will, Michigan’s intestacy laws dictate who receives your assets, which are typically biological or legally-recognized relatives. This means an unmarried partner or chosen family member could be left out.
A Revocable Living Trust provides even greater protection. A trust allows your assets to transfer privately and efficiently outside of probate, reducing the chance of family disputes and preserving privacy. It can also include detailed instructions for the management of assets, including money for children or other beneficiaries who need protection.
Powers of Attorney: Choosing Who Speaks for You
Life is unpredictable. A sudden illness or accident could leave you unable to make important decisions. Michigan law allows you to prepare for these moments by naming trusted decision-makers:
Durable Power of Attorney (Finances): Appoints someone, often a spouse or partner, to manage financial matters if you become incapacitated.
Patient Advocate Designation (Health Care Power of Attorney): Authorizes a person you choose to make medical decisions if you are unable to communicate
HIPAA release: Ensures your partner or spouse can access your medical information and receive updates during a health emergency.
These documents ensure that financial institutions, hospitals and other medical providers look to the person you trust the most to make decisions for you. Without these documents, a court may appoint a guardian or conservator, which could give decision-making power to a family member who may not respect your relationship or wishes.
Beneficiary Designations: Updating Critical Accounts
Certain assets, such as retirement plans, life insurance policies, and payable-on-death bank accounts, transfer directly to the person listed on the beneficiary form, even if your will says otherwise. A careful and thorough review of these designations is an essential part of your estate plan. These designations should also be reviewed each time you update your estate plan (especially after marriage, adoption, the birth of a child, or the death of a loved one) to keep your plan consistent.
Real Estate Ownership: Securing the Family Home
If you own a home together, how you hold title affects what happens when one partner dies:
Married Couples: Michigan offers tenancy by the entireties, which provides automatic inheritance to the surviving spouse and strong creditor protection vis-a-vis the creditors of one spouse, because both spouses are considered to own the entire property. When a married couple purchases property in Michigan, this is the default form of ownership unless another form of ownership is specified on the deed.
Property Purchased Before Marriage: If, however, you purchased your home before you were legally married, the default ownership is tenants in common, meaning each person owns half of the property and at death. In this situation, the deceased partner’s half would go through their own will or trust if they created one, and to their heirs-at-law if they died without a Will, which risks disinheriting the surviving spouse. This situation can be remedied by a new deed signed after the legal marriage.
Unmarried Couples: Unmarried couples can specify joint tenancy with rights of survivorship on their deed to ensure the surviving partner inherits the property without the delay and cost of probate. This type of ownership differs from tenancy by the entireties because the creditor of one spouse can lay claim to half of jointly-held property.
Should Marriage Equality be withdrawn and previously-legal marriages be declared null and void, couples whose deeds were executed while married will likely need to update their deeds to state explicitly “joint tenancy with rights of survivorship,” absent action by the legislature or courts to change the default rule.
Planning for Children
For LGBTQ parents, legal parentage is not always automatic. If only one parent is biologically or legally recognized, the other parent could face challenges without proper planning.
Name the other parent as guardian in your will to care for minor children if something happens to you.
Use a trust to manage assets privately for children until they reach adulthood. Many parents do not realize that if a minor child inherits in Washtenaw County, their assets will be held in a conservatorship checking account at the Bank of Ann Arbor until the child turns 18, at which point the child will have full control of their money.
If you are a non-biological parent, get legal advice to determine how you can obtain legal acknowledgment of your parentage, such as through documentation or an adjudication pursuant to Michigan’s new Family Protection Act or a second-parent adoption.
Reducing the Risk of Family Conflict
Sadly, some LGBTQ individuals face estrangement or resistance from relatives. Clearly drafted, legally enforceable documents are the best defense against challenges, ensuring that your partner, spouse, chosen family members and children are protected.
Take the Next Step
Estate planning is not one-size-fits-all. Michigan’s probate and parentage laws contain nuances that require careful attention, particularly for LGBTQ families. Treetown Law is experienced in LGBTQ estate planning in Michigan. We can help you:
Draft wills, trusts, and powers of attorney tailored to Michigan law
Protect non-biological parents and blended families
Update your plan after marriage, adoption, or other major life events
Represent intended parents in the drafting and negotiation of paid surrogacy contracts under the Michigan Family Protection Act.
Protect What Matters Most
Love may not need legal validation, but your future does. Whether you’re married, partnered, or co-parenting, proactive estate planning ensures that your family will be recognized and protected, come what may.
Ready to secure your family’s future?
Our firm proudly serves Michigan’s LGBTQ community with compassionate, knowledgeable estate planning services. Contact us today to schedule a consultation and create a plan that protects your partner, children, and legacy.
