(This article is the first in a three-part series which relates to estate planning paying special attention to non-marital relationships. Part two will be posted next Friday, May 21. The author, Kristin D. Arnett, is a Lansing attorney specializing in estate planning. She can be reached at KArnett@HubbardLaw.com.)

I have never personally made an effort to count but some have said there are thousands of laws which provide the traditional marital models as the default for estate and property transactions. For those in non-marital relationships, this safety net of default laws does not apply, thus, to achieve similar results, you need to plan proactively. The default laws provide for loved ones of a decedent who left a spouse and even children, if they fail to create, or choose not to create an estate plan. Both State and Federal laws exist to provide benefits and means to transfer wealth to a surviving spouse. One recent statistic indicated that 70% of all adults do not have an estate plan, other than that provided by the default laws which are designed to bridge the failure and provide for their traditional loved ones. Same-sex and unmarried couples do not enjoy the same protections for their loved ones. The people who would be protected upon the death of someone in a same-sex or unmarried relationship would likely be family of the decedent who might not be for whom the decedent would have chosen to provide. It is for that reason that those of you in a same-sex or unmarried relationship must plan and formally execute documents to accomplish your goals in the event of your death. This is especially true if minor children are involved. Odds are that you will not die tomorrow, or the next month, or even this year but odds being what they are, it will happen to some people, through accident, illness, crime or other unforeseen event. But for those of you in non-marital relationships, you will lose if you gamble and, more importantly, your loved ones will lose.

AN ESTATE PLAN IS a process of developing a plan that begins while you are still living and continues after your death, by providing for the distribution of your assets and for the care and support of those you love. Estate Planning is not simply filling in the blanks. A proper estate plan requires thought and tailored drafting of documents that meet your specific needs. When you begin to think about an estate plan, there are many considerations – who will care for you when are unable to participate in making your own medical and care decisions, who will help you pay your bills when you need assistance, who will care for your minor children after you pass away and how will their care be funded, how will your partner be supported when you are no longer able to provide support or have passed away? These are tough and important questions that require thought and planning.

WITHOUT AN ESTATE PLAN, a decedent dies “intestate,” meaning without a will. Michigan’s Estates and Protected Individuals Code has a set of default rules that provide for intestate succession. Under the rules of intestate succession, an estate will first pass to your spouse, children and grandchildren. If none exist, then to your parents and their descendents, which would include decedent’s siblings and their children. If none exist then it goes to decedent’s grandparents and their descendents which includes decedent’s aunts, uncles, and their children. Unfortunately, there is no provision for a domestic partner or any partner of an unmarried couple. The law seems to actually exclude partners in a same-sex or unmarried relationship. If a same-sex couple had been in a committed relationship for fifteen (15) years the surviving partner would not inherit any of the decedent’s estate, however, if a decedent who had been married for one (1) year left a surviving spouse she would inherit under the laws of intestate succession.

In addition, if you have children and only one partner is the biological or adoptive parent, who is not the decedent, none of the decedent’s estate will pass to that child because according to Michigan law the decedent was not the child’s parent.

YOUR PARTNER AND YOUR FAMILY MAY NOT GET ALONG. Sometimes there are other reasons to have an estate plan. If you anticipate family disapproval, having an estate plan can ensure that your wishes are followed, not your family’s. You have the right to dispose of your property however you see fit. You have the right to provide for whomever you wish. However, you must take action to make your desired dispositions a reality. The default laws are NOT likely to protect your wishes if you do not create a proper estate plan. If the family of the decedent had not accepted the domestic partnership, the surviving partner may find himself or herself in a legal battle with the decedent’s family over the administration of the decedent’s estate.

ISN’T IT EXPENSIVE to create an estate plan? A lot of people are concerned about the cost of an estate plan. An estate plan should be looked at as an investment. You plan all sorts of things that you pay for throughout your lifetime, such as various types of insurance. An estate plan is generally a one-time fee and is something of an insurance plan for your care as you age as well as the proper administration of your estate when you pass away. An estate plan should be reviewed every three to five years or, sooner if a significant change in your property or your intentions occurs. For example, one such obvious change would be the adoption of a child. You can be assured that the cost of creating an estate plan will be less than the cost of a courtroom battle or the cost of not achieving your intentions with regard to the distribution of your estate if you die without an estate plan. Even if everyone thinks they know what you would have wanted, you will not be there to speak for yourself. Even when people act in good faith, there is always the chance of misperceptions. An estate plan, properly created, can act as your voice and speak to your intent and, perhaps, more importantly, be enforced, if necessary.

One last item I would like to address is something that is troubling to a lot of people, regardless of your sexual orientation – funeral and burial arrangements. After an amendment to Michigan law in 2006, next of kin, not your partner, have the final say in what happens to your body. In this case, not even someone that you have appointed as a fiduciary, such as your personal representative, patient advocate or agent has priority to make these decisions. So, what can be done? You can begin by talking with your family and letting them know what your wishes are. However, that may not be something with which you are comfortable. You can also look into a prepaid funeral contract. If you have a contract with the funeral home, the funeral director may be obligated to carry out the contract. Finally, you can prohibit your personal representative from paying for any funeral and burial expense other than the arrangements you made yourself.

(The information above is meant to illustrate aspects of estate planning and is for informational purposes only.  It is not meant to be construed as legal advice.  Prior to taking action, you should consult directly with an attorney for specific advice based upon full disclosure of your own legal situation.  The above information shall not be reproduced without specific authority obtained from the author of this article.  © 2010 Kristin D. Arnett)