By Brian D. O’Keefe and Anne C. Lipp, Lippitt O’Keefe Gornbein, PLLC
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. This article provides practical interim guidance until the Michigan Law Revision Commission recommends revisions to Michigan statutes and our Legislature enacts corresponding legislation.
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, counsel should advise that, 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, counsel for same-sex married clients should advise the couple 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.
This article was originally published in the State Bar of Michigan's Real Estate E-Newsletter here.