Groucho Marx once said, “Marriage is a wonderful institution, but who wants to live in an institution?” Typically, marriage is a partnership between two individuals who love each other. It is important to remember that marriage is also a legal institution which provides special protections to each spouse.
While marriage is an ancient practice, it is still subject to change. The most recent change occurred in 2015, when the United States Supreme Court legalized same-sex marriage in Obergefell v. Hodges. Previously, Michigan had prohibited same-sex marriages.
Marriage in Michigan occurs when a ceremony is performed, by a licensed officiant, between two individuals who have obtained a marriage license. To obtain a marriage license, the individuals must be over the age of 18, not married already, and have the capacity to get married.
One of the fundamental protections the institution of marriage provides is in real property ownership. A married couple can own real property as “tenants by the entireties.” This means that each spouse has survivorship rights in the property, that a husband’s share of the property cannot be touched by the wife’s creditors (and vice versa), and that one spouse cannot deed away the property without the other spouse’s permission. Previously a wife would have a property interest in the property of her deceased husband called dower. Dower was eliminated in Michigan in April 2017.
Marriage provides special protections to fathers. When a child is born to a married woman, her husband is presumed to be the father. If an unmarried couple has a child, the father must jump over hurdles to have the same rights over his child as a married father. An unmarried father must either sign documentation acknowledging the child as his own and file it with the state or initiate an action in court. Without these actions, the biological father has no legal rights to control the care and custody of his child.
Being married also gives the spouses special priorities under the law. This includes the priority to serve as your spouse’s conservator or guardian. For a spouse to be bypassed as a conservator or guardian, the spouse must either sign a waiver, or the person applying to be a fiduciary must explain why the spouse is unfit to serve. A spouse also has priority to serve as personal representative for the estate of their deceased husband or wife.
A husband or wife is given special financial protections after their spouse dies. A spouse can take what are called special allowances from the estate before it is distributed. These special allowances are the homestead allowance, the personal property allowance, and the exempt property allowance. These total $62,000 and are adjusted annually for inflation. A spouse also has the option of taking against a decedent’s will if they are unhappy with the portion given to them. A spouse can take one half of the property they would have received under the intestacy statute minus half the value of property they have received from the decedent.
The federal government provides special protections to married couples as well as the state. Under federal rules, a spouse must be named as the beneficiary of government regulated retirement plans including 401K’s and IRA’s unless the spouse signs a waiver allowing the account holder to name another as the beneficiary. Married couples also receive lower tax rates than individuals filing alone. In addition, there are increased exempt amounts for gift and estate taxes for married couples.
As marriage rates go down, and more people have committed relationships outside of marriage, many people believe these special protections should be extended outside of married relationships. However, Michigan has a firm policy of prohibiting common law marriages and will discourage anything that resembles common law marriage. Marriage is more than a romantic relationship, it is a legal institution. Individuals entering a marriage, leaving a marriage, or deciding to forgo marriage should consult an attorney in order to adapt the laws regarding marriage to their specific situation.
