Estate Planning for Same-Sex Couples

When preparing for death or a possible medical crisis, it is important to consider what will happen to your property after you die. Lawyers call this "estate planning," and it's especially important for people who are seriously ill. Upon your death, your property can be transferred in only three ways:

  1. your estate planning documents, such as a will or living trust
  2. joint tenancy documents
  3. by laws imposed by your state. (In Michigan, there are no laws protecting the rights of same-sex couples.)

No other method is possible. Your oral statements made before death about who should get your property have no legal effect. A durable power of attorney is no longer effective after your death, so it can't be used to transfer your property. Even while you are alive, an attorney-in-fact has no power to make a will or estate plan for you.

Without proper estate planning documents, your partner has no power over any aspect of what happens to you or your property after your death. Unless you've made valid written instructions through the proper documents, your partner can't receive any of your property, decide how to distribute or dispose of it, or arrange for your burial or body disposition. At this most traumatic time in their lives, they may be completely pushed to the side.

These dire consequences can be avoided by proper estate planning. If you do nothing else, at least prepare a will, so you, not your state's laws or your relatives, determine who gets your property. Ideally, a medical power of attorney and a living trust are the best way to ensure that your wishes are complied with.