BY AJ TRAGER
FERNDALE – In a community conversation discussing the legal changes same-sex couples will face as a result of marriage equality, Miller Canfield highlighted how, compared to other states, Michigan is far behind in preparing for legal changes resulting from the U.S. Supreme Court decision.
Jennifer LaTosch and Lynn Sirich, attorneys and counselors at law, presented their seminar, “Marriage Equality: New Legalities,” to a group of 30 people Sept. 16 at Affirmations. LaTosch and Sirich outlined how Michigan is dragging its feet when it comes to amending documents and policies for married, or soon to be married, same-sex couples.
“Michigan didn’t prepare for this. Our governor, our legislators and our attorney general were fighting a case trying to keep the (same-sex marriage) ban going, and they didn’t think about what the ramifications would be if they lost,” LaTosch said.
When other states had started preparing legislative and legal statute changes due to a possible marriage equality ruling from SCOTUS, Michigan sat dormant. Thus, adoption, family planning, current state planning documents, real estate documents, prenuptial agreements, post-nuptial agreements, tax planning issues, marriage and divorce are all affected by the shift in state law, extending and expanding many of these rights to same-sex couples.
“I have no great hope that they are going to fix a lot of these things real fast, so what we’re going to try and have to do is find some stop-gap measures to figure out the best way to find protections for ourselves and our kids until Michigan catches up with federal law,” LaTosch said.
All marriages performed are now recognized under U.S. law. Before seeking a Michigan marriage license, LaTosch and Sirich emphasized the importance of terminating old marriages or civil unions that occurred before the U.S. Supreme Court ruling in June. These prior situations can cause legal complications down the pipeline.
Same-sex couples can now benefit from the same estate laws and gift-tax advantages that heterosexual couples enjoy. Same-gender spouses will now have intestacy rights, be given priority to be named as a conservator or guardian over their spouse and can finally file joint state tax returns.
Previously married same-sex couples in Michigan filed upwards of five tax returns. Now, if a marriage was recognized at the federal level, a couple can file amended, joint-returns for the past four years, LaTosch said.
Pre and post-nuptial agreements can be drafted to protect the assets of either partner prior to the wedding date. Sirich suggests a review of established estate planning every three to five years and encourages people to create a trust, which will avoid the entanglements of probate law.
To ensure that children are protected to the best of the parents’ ability, the team at Miller Canfield suggests that married same-sex couples seek a “second” or step-parent adoption. The Michigan Marriage Amendment defined marriage as between a man and a woman. Now post-SCOTUS, step-parent adoptions allow both parents to be listed as legal guardians of the child and extend a number of protections to both parents such as hospitalization rights and many day-to-day protections that married opposite-sex couples often take for granted, such as custody, parenting and support rights.
LaTosch outlined other ways that Michigan couples are seeking joint-protections for their children such as an Affidavit of Parentage, often applied to opposite-sex couples who have children out of wedlock, which shows intent to protect and take responsibility for the child but may fall circumstance to the Revocation of Paternity Act, which would find the second parent not biologically related to the child and could revoke the gained rights. To combat this, LaTosch suggests filing for a second-parent adoption. Information regarding second-parent adoptions can be found at a local county clerk’s office.
“The ripple effect from this will span decades,” LaTosch said. “Talk to a professional with every step that you do before you just jump in and do something.”