You and your partner have been living together for years, maybe even decades. You have a committed relationship that may even have been blessed by your church, but for a variety of reasons, you will not be married.
It could be that you are both seniors whose spouses have passed away and you may not want to have your assets at risk for your partner’s nursing home costs. You may want to protect your separate assets for your own children or other beneficiaries. Or it may be because the law in Michigan does not allow you and your partner to marry.
For opposite sex couples, you may think that you have some sort of common law marriage because you have been living together as a couple for so many years. Fortunately, or unfortunately, Michigan does not allow common law marriages. No matter how long you have been cohabitating in Michigan, you are not considered married. However, if you became married under the common law of another state, that marriage most likely would be recognized and considered valid in Michigan pursuant the “full faith and credit” clause of the U.S. Constitution. Our Constitution generally compels a state to recognize a marriage valid under the laws of another state.
Because you have been living together for so long, you and your partner are truly one another’s other half. Even so, since you are not married, you have no rights or authority over each other in the event of the mental disability of one of you. There are generally only two classes of people who can make decisions for you when you cannot: those whom you appoint and those whom the probate court appoints. If you have done no planning, you have appointed no one, so no one would have the legal authority to act on your behalf during your mental disability without court involvement.
Without prior planning, in order to handle your medical and mental healthcare treatment decisions during your mental disability, your partner would have to file in probate court to have a guardian appointed. To handle your financial matters and your “stuff” during your mental disability, your partner would have to file in probate court to have a conservator appointed. And your partner doesn’t have priority for these appointments, your blood relatives do.
If you want your partner making these decisions for you when you cannot, you should have healthcare and financial powers of attorney. In the event of your mental disability, your partner would be able to make your medical and mental healthcare treatment decisions and financial decisions without court involvement.
There are similar issues after your death. Your blood relatives have priority over your partner in determining the disposition of your remains. The best way to increase the likelihood that your wishes for your funeral and burial will be followed would be to purchase a prepaid funeral contract from a funeral home. With this agreement, you can pick and choose the services that you want to be provided by the funeral home after your death. It leaves no question about what your wishes were. If you have a prepaid funeral, just make sure that your partner and/or other loved ones know about it.
With regard to your stuff after you are gone, if you have done no planning, your partner gets nothing. Everything goes to blood relatives. If you want anything to go to your partner, you have to have a properly drafted trust and/or will. In you trust or will, you can leave everything to your partner if you so desire, leave everything to blood relatives, or you can divide your stuff among your partner and blood relatives. You can decide.
When you are living with someone, you usually are going to have some type of financial arrangement. You may be sharing living and/or housing expenses. You may have a joint account to which you each contribute to take care of household or other common expenses. One of you may have agreed to support the other.
Would it not be a good idea to put your agreement down on paper? If you have a committed relationship, it would make sense that you would want to protect yourself and your partner, as well as your children or other loved ones.
There are a variety of names for this agreement. It could be called a Cost Sharing Agreement, Cohabitation Agreement or a Domestic Partnership Agreement. I even had one client call it a Shack-up Agreement.
This agreement is a written contract between you and your partner. So what can you put in this contract? Well, Michigan contract law is fairly broad. You can put just about anything in the contract as long as it is not illegal or against public policy.
If you want your partner to be able to live in your house for the rest of his or her life, as long as he or she pays the bills and your kids can not kick him or her out, then you should put it in the agreement. If you have joint accounts with your partner that you do not want to go to the survivor but be divided between your partner and your children, you can put that in the agreement. If you and your partner have joint property, but you want it to go to your children or other loved ones after you are gone, put it in the agreement.
In this agreement, you should detail your and your partner’s rights and responsibilities during your partnership and also after it dissolves due to death or other causes. Who gets what? How are assets acquired during the partnership going to be divided up? Who pays which debts? Using a written agreement, both of you are protected, the property of each of you is protected and each of your own children or other beneficiaries are protected.
You should then update your financial and healthcare powers of attorney, will and trust to conform to that agreement. For example, if you wanted to make sure your partner was cared for in the event of your disability, you could provisions in your trust that provides for both you and your partner during anytime of your disability. You could also leave any of your property after you are gone to your partner with provisions in your will or trust.
At a minimum, you and your partner should have a will and financial and healthcare powers of attorney. You and your partner may also benefit by having a Shack-up Agreement and/or each having a trust. With proper planning now, you can stay in control while you are alive and well, provide for you and your loved ones in the event of your mental disability and when you are gone, give what you have, to whom you want when you want the way you want.
Published edited March 2, 2014 in The Times Herald newspaper, Port Huron, Michigan as: Unmarried couples also need protection