THE LAW OFFICE of DOMINIC SILVESTRI, PLLC


TILL DEATH DO US PART? SAME SEX MARRIAGES AND REAL ESTATE IN MICHIGAN:

TILL DEATH DO US PART? SAME SEX MARRIAGES AND REAL ESTATE IN MICHIGAN:

This June, in Obergefell v. Hodges, 576 U.S. ____ (2015), the U.S. Supreme Court ruled that same-sex marriage bans were unconstitutional, overturning state bans on same-sex marriage, including Michigan’s. However, this ban raises some interesting issues when it comes to applying it Michigan real estate law. For example, Michigan requires any Deed conveying property to a male to include the male’s marital status (but the same does not hold true for females). Originally this was developed as a way to protect a woman’s dower interest (interestingly, dower interest only applies to women…not men).

Dower
Michigan is the only state providing dower rights exclusively to widows. As a result of the confusion that will likely occur in applying the Dower Statute (MCL § 558.1) to same-sex marriages, the Legislature should modify or abolish this statute.

In the meantime, whenever any couple, heterosexual or same-sex, is acquiring an interest in real property, and if each member of the couple wishes to hold an interest, both should be named as grantees on the deed.

Deeds & Land Contracts
Michigan law currently requires that contracts transferring or mortgaging real estate state the marital status of any male grantors (due to the Dower Statute) but not female grantors. MCL § 565.221. In light of the uncertainty in applying Michigan’s Dower Statute to same-sex couples, all deeds and contracts should state the marital status of all grantors, regardless of gender.

Tenants by the Entirety
A married couple is presumed to take property as tenants by the entirety (Butler v. Butler, 122 Mich. App. 361 (1983)), which status confers special benefits. Until the Legislature acts to remove doubts about these title issues, however, same-sex married couples should consult with their attorney as to the pros and cons of taking title as tenants by the entirety or tenants in common (or other form), and the form of title chosen should be unambiguously specified on the deed.


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