The rights of a non-married partner to inherit in Michigan

Common law marriages in Michigan (Novel notes in the law, part 42)

Q: My niece was living as a girlfriend to this man who passed away last week. He said he wanted to make sure she was "taken care of," while he was going through his last illness. He even told his best friend the same thing. They lived together for 7 years, or maybe more. Now that he's died, his family is kicking her out of their house, and telling her that she should be gone in 14 days. I thought that there was common law marriage in Michigan, so she should be covered as far as "being taken care of," am I right?

A: No, you are wrong. Your niece's situation presents three issues in three areas of law: 1. Family law 2. Probate Law and 3. Landlord/tenant law.

1.  Family Law.
It's a myth that there is any common law marriage in Michigan. It has not been a part of Michigan law for decades. As of 2011, there are only 16 states which recognize common law marriage. Michigan has not recognized common law marriage since 1957, so unless your niece has been with her boyfriend since then (7 years = no), or had the common law marriage recognized in a state which does allow common law, then this relationship will not give her status as next of kin, spouse, etc, as far as having any rights to the estate, or the house, etc.

But: Had the niece actually gotten married to the boyfriend this situation would be totally reversed, as she would most likely inherit the property, have the right to stay in the property, and share in his estate as spouse.

2. Probate Law / Estate Planning.
Telling someone that he wants  to "take care of her" when he is gone is not the same as having created a valid will or trust in Michigan which benefited your niece. The only way to make sure that someone is provided for out of the estate is to place those intentions IN WRITING (I can't emphasize that strongly enough), and observe the proper formalities of writing a will in Michigan (signed by the testator while in the presence of two witnesses). A verbal expression to anyone about how one's assets should be distributed means nothing, I am sorry to say.

3. Landlord/Tenant Law. 
I imagine that there was no lease from the owner of the property to the niece. In that situation, the law would treat the niece most likely as a month-to-month tenant. In that case, the family of the deceased should treat her as if they were the landlord, and give her proper notice as to when she should vacate the premises. This is done under the Summary Proceedings Act, which is designed to quickly restore the property to those who have rightful ownership (more information can be found here ). Most likely, the family of the deceased will need to give a 30-day Notice to Quit to your niece). 

If you've resolved to provide for your family, you need an estate plan. (Or: a short guide to Michigan's intestacy laws)

New Year's Day, and the season in general, is full of reflection on how to live a better life. This leads to the tradition of making resolutions.

One resolution many adults should have is to plan for the future, and if one thing in the future is certain, it is that either you will read my obituary, or I will read yours. (Sorry, but the old adage of "death and taxes" is true, sadly.) It's better to face facts, be prepared, and let your intentions get carried out after death. Otherwise, the state of Michigan will do your planning for you, through its laws of intestacy. (Intestacy means dying without a will).

Q: I don't have a lot of things to pass to other people, or much money to pay an attorney. But what if I care about a few important things?

A: Michigan's probate code (also called EPIC, the Estate and Protected Individuals Code) can be found at MCL 700.2101 (or find it here).

The intestacy portion begins with "any portion not disposed of by will . . . " This means that Michigan allows for a partial will. In other words, if you have a piece of property (real property- like the family cottage, or personal property -- an heirloom, or your speedboat) you can write a will to dispose of those "things," and leave the rest to be sorted out by a probate case after you die.

As far as the cost for an attorney to write your will, the costs can reflect how simple (or complicated) your issues might be.

Q: I have siblings that I don't get along with. Will they inherit from my estate? 

A: It depends. If you have a spouse or children who live after your death (or "survive you" as it is legally termed), they will inherit first.

This assumes, of course, that you will have something for them to inherit after debts from your estate are left, as EPIC insists that costs, such as funeral expenses, be paid first.

If you have no spouse or kids when you die, your parents will inherit from your estate, if they survive you. Only once these potential heirs have inherited, will other descendants of your parents inherit.

However, it could possibly be that you die with your spouse, or shortly after, and that your parents are already deceased. The better thing to do, instead of leaving it to chance, is to write a will or partial will, that makes your intentions clear that your sibling (or whomever) will not inherit from your estate.