Filed under: Cohabitation Agreement,Estate Planning — Tags: "Asset Protection", "Cohabitation Agreement", "Gay", "Living Together Contract", "Marc Wander", "Michael P. Witzke", "Michigan Estate Planning Lawyer Blog", "Nonmarital Agreement", "Same-Sex Couples", "Witzke Berry Carter & Wander", Michigan — Christopher J. Berry @ 7:12 pm
In the event of death or breakup without a cohabitation agreement, you and your partner may be treated as legal strangers.
If you have chosen cohabitation over marriage – you aren’t alone. Cohabitation between married partners has increased 1,150 percent in the last 40 years. The fact remains that, unless you define your partnership through a legal contract, the law may see you as strangers in the case of a breakup or death.
What is Cohabitation?
The concept of cohabitation has expanded to include any two partners who have integrated their residence, property and daily lives. It can be viewed as a starting point for people considering marriage down the line, but can also be the ideal arrangement for couples who don’t want the social, personal and legal commitment associated with marriage. Other reasons individuals cohabitate include:
- Reduction of living expenses.
- Inability of a union of same-sex individuals to be recognized by the law.
- Choice by older individuals who don’t want to upset family or friends through remarriage.
The need for Cohabitation Agreements.
By choosing cohabitation, couples forego certain rights and protections that would be provided for them in a marital union. Married couples accrue legal rights, including the right to receive a property settlement and/or support in the event of divorce; file joint tax returns; receive distributions from estates free of estate tax; receive survivor’s benefits from retirement plans and Social Security; obtain “family” health insurance, dental insurance, and other employment benefits; and automatically share in his/her partner’s property in the event he/she dies without a will. Unmarried couples, generally acquire similar rights by expressly securing their benefits in cohabitation agreements (also referred to as cohabitation contracts). A cohabitation agreement is a private contract between cohabitants, which typically tries to establish contractually for the parties the rights and obligations that married people obtain by custom, statute, and agreement.
Why a Cohabitation Agreement?
Even if you regard your partner as family, the law usually does not. As a result, your partner may not be provided for in the manner you desire. For example, if you die without a will, your property generally will pass to your next-of-kin and not your partner. Paradoxically, the law may provide certain benefits for your partner that you had no intention of giving to him or her. Today, some courts are using equitable doctrines to apportion assets between cohabitants to prevent hardship and injustice. Because these doctrines are vague,proving them is both difficult and expensive. Therefore, you should be proactive and define your own partnership through a legal contract. Below are additional benefits of entering into cohabitation agreements:
- To guarantee the financially less secure partner an equitable settlement.
- To properly compensate a party for his or her role as a caretaker
- To allow the financially more secure party to limit exposure in the event of a breakup.
- To disclose expectations of the relationship, both financial and personal.
What to cover in a Cohabitation Agreement?
A cohabitation agreement is a flexible, laissez faire document that is less subject to regulation than a marital agreement. These contracts typically cover the following key points:
- Distributing property in case of death or breakup.
- Obligating financial support during the relationship or upon its dissolution.
- Handling the payment of debts.
- Dividing the principal residence upon breakup of the relationship or if one of you dies. Setting up the property ownership as ‘joint tenants with rights of survivorship’ will allow your partner to stay in your shared home. You’ll also want to be sure both of your names are on the deed.
- Defining support, custody or visitation rights for minor children (although nonbinding).
- Specifying health insurance coverage. Create a ‘health care proxy’ that will allow your partner to make decisions about your health care in case of emergency.
- Determining the right to serve as guardian/conservator in the event of incapacitation.
- Establishing the right to make medical decisions.
What’s the difference between a Cohab and a Prenup?
Prenups and cohabs compare like apples and oranges. A cohab will NOT have the same force and effect after marriage as a prenup. Most states have adopted legislation prescribing specific requirements for prenups, while very few states have adopted laws dealing with cohabs. As a result, cohabs are governed almost exclusively by general contract principles. Please remember that while a prenup goes into effect only upon marriage, a cohab usually isn’t valid once the parties marry.
The Commitment Conversation:
Are you in a long term relationship or do you know someone who is building one? In an effort to help individuals and couples feel more comfortable in discussing their lives together, we’ve created a guidebook to help you and your partner navigate through conversations that will strengthen your lives together.
AN IMPORTANT NOTE:
Living together does not automatically entitle either one of you to the rights and protections afforded to married couples. That is why you and your partner must state your rights and obligations in a legal document in the event of a breakup or death. A cohabitation agreement will insure that you and your partner are protected at the same time that it clarifies your understanding of the relationship.
Contact attorney Marc Wander to set up a cohabitation agreement.
Read more:
http://www.equalityinmarriage.org/bmagreements.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
Filed under: Asset Protection,Nonmarital Agreement — Tags: "Asset Protection", "California", "Cohabiting Couples", "Estate Planning", "Gay Couples", "Living Together Agreement", "Marc Wander", "Marvin Vs Marvin", "Michigan Estate Planning Lawyer Blog", "Nonmarital Agreement", "Witzke Berry Carter & Wander" — Christopher J. Berry @ 5:33 pm
While living together contracts are sometimes made to protect each partner in the event of a breakup, more commonly, couples enter into them to communicate their needs and expectations, define their rights, and enhance one or both partners’ peace of mind at either the start of the relationship or when the couple makes a major purchase. By creating a well-crafted agreement, not only do you gain a better understanding of how you really want to own your property, but it also serves as a useful reminder if misunderstandings develop later or one of you perishes without a will. An additional benefit of a living together agreement is that if one partner is supporting the other, or if one partner has given up a career in order to take care of the home or raise children, the agreement will protect the dependent partner by ensuring that issues of support and compensation are stated in writing.
If you are in a long-term and serious partnership you should consider the legal consequences of dealing with money and property. If you plan to mix assets or share expenses, you should put your agreement in writing, especially if a lot of money is involved. If neither of you have any money, with no property and little prospects on the horizon, there is still benefit in deciding how money and or property will be dealt with if it one day arrives. In addition, practical issues of day-to-day living like how expenses will be paid can be established at this time.
A written agreement, though no substitute for trust and communication, is essential and can do wonders to reduce paranoia and confusion and help people deal with one another fairly. While there aren’t any national statistics on the number of unmarried, cohabiting couples enter into living together contracts, some lawyers say such contract are rising as a result of more couples living together and new legal rulings that support the validity of living together agreements.
Legal Rules Governing Living Together Contracts
Predominantly, courts and judges — not legislatures — have made the legal rules governing living together contracts. The leading court case is the well-known Marvin v. Marvin, 557 P .2d 106, decided by the California Supreme Court in 1976. It involved the actor Lee Marvin and the woman he lived with, Michele Triola Marvin; who used his last name even though they were not married. In its Marvin case decision, the court announced what later became the common legal principles governing the right of unmarried couples to make contracts. First, the court ruled that marital property laws do not apply to couples who are not legally married. Next, it recognized that unmarried couples are here to stay, and finally, the court declared four contract principles:
- Unmarried couples may make written contracts.
- Unmarried couples may make oral contracts.
- If a couple hasn’t made a written or oral contract, the court may examine the couple’s actions to decide whether an “implied” contract exists.
- If a judge can’t find an implied contract, she may presume that “the parties intend to deal fairly with each other” and find one partner indebted to the other by invoking well-established legal doctrines of equity and fairness.
In the aftermath of the courts Marvin ruling in California, other states have upheld the application of these principles made by unmarried partners — both straight and gay. Based on the state, however, a court may abide to different legal rules. Nearly every state’s courts and the District of Columbia now enforce written contracts between unmarried partners; with Illinois, Georgia, and Louisiana as exceptions. Additionally, most states also recognize oral contracts; Texas and Minnesota are the only states that have passed laws requiring contracts to be in writing; while New York and New Mexico have been unwilling to recognize implied contracts.
You can avoid a host of legal problems by putting your living together agreement in writing. Contact attorney Marc Wander to do so, today.
Read more:
http://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter2-5.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
Filed under: Asset Protection,Estate Planning,Nonmarital Agreement — Tags: "Asset Protection", "Cohabitation Agreement", "Living Together and Property Agreement", "Marc Wander", "Michigan Estate Planning Estate Planning Lawyer Blog", "Michigan Estate Planning Lawyer Blog", "Nonmarital Agreement", "Property and Finances", "Witzke Berry Carter & Wander", Michigan — Christopher J. Berry @ 4:06 pm
Marriage is a contractual relationship that commits a couple to a well-established set of state laws and rules governing, among other things, the couple’s property rights should one spouse die or in the event the couple split up. On the other hand, unmarried couples, do not automatically agree to any state-imposed contractual agreement at the onset of their relationship.
The couple may have a joint obligation to a landlord or to a mortgage company if they rent or buy a place together, no different than if they were roommates. In and of itself, living together does not create a contractual relationship, nor does it entitle you to a property settlement (for inheritance) should you split up (or should one of you perish).
What’s a Living Together Contact?
Typically, unmarried couples buy property, mixes assets, and invests together without writing down how the property will be shared if they split up. If problems about money and property arise, they usually try to reach an understanding or a compromise. And if they split up, possessions are typically divided and they part way without an obligation to follow the legal rules applicable to marriage and divorce.
But you don’t need me to tell you, that not all relationships end so smoothly. Often relationship battles end up in court. As a result, courts have ruled that unmarried couples generally have the right to create whatever kind of living together contracts they want relating financial and property concerns.
If an unmarried couple chooses to make an agreement together, or in some states if they act as though an agreement exists, that agreement will often be considered an enforceable contract– a “nonmarital agreement” in legal terms, or what we call a living together contract or agreement. An agreement of this nature can help alleviate problems when you commingle money and property; clarify your intentions and expectations regarding property ownership, caring for children, and covering household expenses; and ease the division of property during a breakup.
What to Include in a Living Together Contract
A living together contract can vary from being comprehensive, covering every aspect of your relationship, to specific, covering a single transaction such as a new house purchase. Your contract should state exactly what you each want, and how much sharing (if any) you want to do of property and finances. The following are the most common issues included in a living together contract:
- property and finances, including the property you had before you began the relationship, as well as the property either or both of you accumulate during it
- property inherited or received by gift during the relationship
- property bought during the relationship
- expenses, such as food, utilities, and housing
- what will happen to your property if you split up or if one of you dies, and
- a method for
Contact attorney Marc Wander to ensure your nonmarital agreement protects you and your assets in the event your relationship goes astray.
Read more:
http://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter2-5.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
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November 28, 2012
Filed under: Asset Protection,Estate Planning,Living Trust,Living Will — Tags: "Asset Protection", "Bloomfield Hills", "Christopher Berry", "Divorce", "Estate Planning", "Estate-Planning Tools", "Life Stages", "Michigan Estate Planning Lawyer Blog", "Witzke Berry Carter & Wander", Michigan — Christopher J. Berry @ 2:26 pm
The joys of parenting
If you have children, update your will to nominate a guardian to step in if you and your spouse pass away. Include provisions in your will or a separate revocable trust so that your child doesn’t inherit everything at the age of 18.
A revocable trust allows you to appoint a trustee to handle any money your child inherits. The trustee can use it to support your child as the child grows up, and you can specify at what age your child can receive the money, along with any reasons your child should get it before that age, such as starting a business or buying a house. You can also specify that the trustee can withhold money if your child has a gambling problem, is in the midst of a divorce, or there’s another situation that makes it inappropriate to inherit.
You’ll also need a separate guardianship nomination that nominates a guardian to care for your child if both parents are incapacitated. That’s helpful in simpler situations as well, such as when both parents take a vacation and a child needs emergency medical treatment.
Each time you have another child, be sure your estate planning documents address all of your children, and don’t forget to increase your life insurance.
“Sing it, Tammy Wynette: D-I-V-O-R-C-E
If you’re separating or divorcing, it’s unlikely that you want your spouse to have the authority to make decisions on your behalf and access your medical and financial information. Revoke those documents, including beneficiary designations, or sign new ones. A divorce decree doesn’t magically change those things.
If you remarry, revise your will and trust documents to reflect the proper beneficiaries. Most people want to share with their new spouse but also want to provide for their separate children at their death. Determine which assets you want to leave to your spouse and which to leave to your children.
The middle ages
As you approach your 40s and 50s, consider purchasing long-term care insurance, which will cover the cost of long-term care or a nursing home.
The golden years
Review your life insurance to determine whether you can reduce it if your children are grown. Also, review designations on your durable power of attorney, health care proxy, and HIPAA release to ensure the people you’ve named are still in your life and willing and able to serve in that role. At this stage, it is common for people to start planning their funeral to make sure that’s in order.
Contact Michigan Estate Planning Lawyer Christopher Berry to ensure your estate plan is secure and in place.
Read more:
http://finance.yahoo.com/news/8-life-stages-estate-planning-080013261.html
Attorney Christopher J. Berry is a Metro Detroit estate planning and elder law lawyer who helps families, seniors, veterans and business owners with their important legal needs. Oakland County estate planning lawyer, Christopher Berry is a partner in the Bloomfield Hills law firm of Witzke Berry PLLC. Mr. Berry practices in the areas ofestate planning, business, probate, veterans benefits & Medicaid planning. Follow Christopher on Twitter@chrisberryesq.
Filed under: Asset Protection,Estate Planning,Life Insurance,Will — Tags: "8 life Stages of Estate Planning", "Asset Protection", "Christopher Berry", "Divorce", "Estate Planning", "Estate-Planning Tools", "Marc Wander", "Married", "Michael P. Witzke", "Michigan Estate Planning Lawyer Blog", "Single", "Witzke Berry Carter & Wander", revocable living trust — Christopher J. Berry @ 2:15 pm
Your estate plan should account for the many stages of life that you experience. Below is a rundown of the estate-planning tools you should have if you’re just beginning your life’s journey, halfway through, or approaching the homestretch.
Ch. 1: Planning for life
- 8 life stages for planning
- The basics of estate planning
- Estate-planning Q&A
- Should you have a will?
(Why You Need to Put Your Living Together Agreement in Writing)
Young, single and carefree
Parents make financial decisions for children by law, until they reach 18, and that legal right is vanquished. Consider the worse, if something happened to you, it is in your best interest for your parents to have access and control to your health care and financial decisions. Access to your medical providers, and more importantly, a say in your health care decisions protects you in the event of the unforeseen.
(A Risky Lifeline for the Elderly Is Costing Some Their Homes)
If you’re over 18 and unmarried, execute four documents to ensure your loved ones can carry out your wishes:
1. A general durable power of attorney enables you to designate who will control your finances if you become incapacitated, whether it’s your parents or another loved one.
2. A health care proxy allows you to designate who will make medical decisions on your behalf in the same situation.
3. A living will lets you lay out your wishes regarding life-sustaining medical treatment.
Estate planning life stages
- Young and single.
- Single, but committed.
- Engaged.
- Just married.
- Parents.
- Divorced.
- The middle years.
- The golden years.
(Sandbagging In M&A Deals: Silence May Not Be Golden)
4. Finally, a Health Insurance Portability and Accountability Act, or HIPAA, release enables your designated agent to discuss your medical condition without violating patient privacy laws. Without those documents, loved ones may have to resort to seeking guardianship over you in court at a time when it is the last thing in the world that they want to be doing.
Single, but committed
A will or trust can ensure your life partner inherits your possessions if you’re in a long-term relationship but unmarried. Otherwise, state law deems that they go to your closest relatives.
(The Global Logic of Strategic Alliances)
We’re engaged!
A prenuptial agreement isn’t only for people who have a lot of money. It’s essential for everybody. A lot of people divorce because they’ve never had conversations about money. A prenuptial agreement forces people to engage in this financial conversation.
Just married
Edit your durable power of attorney, health care proxy and HIPAA release if you want to eliminate any question that your spouse should control your financial and medical decisions if you become incapacitated. Think of Terri Schiavo, referring to the woman whose parents and husband battled publicly for seven years over the right to make health care decisions on her behalf after she became incapacitated. She didn’t have a health care proxy.
(Lesbian Couples’ Marriage Rights)
If you do not have a revised durable power of attorney, your spouse also can’t administer property solely in your name or property you hold jointly with your spouse. Also, indicate the person you’d like to make financial and medical decisions on your behalf in the event an accident incapacitates you and your spouse.
If you don’t already have one, this is also the time for a will or trust. In a lot of states, if you die without a will and have a spouse but no children, your spouse will inherit some of what you own, but your parents will also inherit. Avoid the risk of a fight between your spouse and parents over who should inherit, and have a will or trust definitively state who should receive your assets. Also, if you own a home, purchase life insurance that will pay off your mortgage if one spouse dies.
(The Paperwork Mountain at Veterans Affairs)
Finally, change your beneficiary designations in terms of health insurance and investment plans so they pass to your spouse. A lot of people think when they get married, those things change on their own, but that’s not the case. Visit your human resources department and ask which documents include a beneficiary. Health savings accounts and flexible spending accounts sometimes have a beneficiary, as do bank accounts payable on death.
Contact Michigan Estate Planning Lawyer Christopher Berry to ensure your estate plan is secure and in place.
Read more:
http://finance.yahoo.com/news/8-life-stages-estate-planning-080013261.html
Attorney Christopher J. Berry is a Metro Detroit estate planning and elder law lawyer who helps families, seniors, veterans and business owners with their important legal needs. Oakland County estate planning lawyer, Christopher Berry is a partner in the Bloomfield Hills law firm of Witzke Berry PLLC. Mr. Berry practices in the areas ofestate planning, business, probate, veterans benefits & Medicaid planning. Follow Christopher on Twitter@chrisberryesq.
November 17, 2012
A world of legal problems can be avoided if you put your living together agreement in writing. A written contract identifying who owns what is the only way to protect yourself and honor your collective intentions — whether you want to keep all your property separate or share some or all of it. You may face serious and potentially expensive battles if you separate and can’t agree on how to divide what you have acquired.
Putting your contract in writing does not need to be a dreaded or time-consuming. Approach the task in the spirit of clarifying your understanding and preserving the shared memory of two fair-minded people.
Often, one or both partners is reluctant to sign a contract because they believe it demonstrates a lack of trust in the other partner’s word. On the contrary, it’s a healthy dose of realism, recognizing that over long periods of time, recollections fade and feelings change. A written contract alleviates you of the worry that your original intentions won’t be later forgotten.
Without a written contract, it is near impossible to enforce a claim of an oral contract in court. If your partner isn’t willing to sign an agreement, don’t rely on the oral promise.
It is best to seek a lawyer’s help before signing any agreement that involves a lot of money or property — or complicated estate planning. Contact Michigan estate planning attorney Marc Wander, today.
Read more:
http://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter2-5.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
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