The New Frontier–Gay Marriage–or as we should call it: Marriage

Same sex couples in every state of the country can marry.

OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH

You can find the decision here: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Same sex couples in every state of the country can marry–something many in our country never expected. And it brings about a change many older gays and lesbians never dreamed possible. (The  decision was a close one–a five/four vote by the nine Supreme Court Justices. But even a five/four decision by the Supreme Court is still the law of the land.)  As Vice-President Joe Biden might say, “it’s a big f…… deal.”

Further, if they (a same sex couple) were already married anywhere that allowed such a marriage, and moved elsewhere, the state they moved to may not deny the validity of their marriage.   (All prior state laws or state constitutional provision trashing such marriages or denying recognition of such marriages, has been deemed unconstitutional by the U.S. Supreme Court 6/26/2015.)

The case, of course, also has a Michigan connection since the DeBoer et al. v. Snyder, Governor of Michigan case–first heard in front of Michigan Federal District Judge Bernard Friedman, was consolidated with the Obergefell case and one other.  (By the way, Judge Friedman will marry the Michigan couple, according to this report:  http://www.freep.com/story/news/local/michigan/2015/06/26/same-sex-marriage/29359353/

Under Michigan law, in many many areas, such as estate distribution, determination of next-of-kin, divorce law, adoption law, pension benefits, and scores of others, the term spouse is used, and sometimes even the term “husband” or “wife” is used.  Lots of Michigan court forms will need revision now.  The Michigan Treasury will need to approach same sex married tax returns differently than they have in the past.  A gay married couple should now be able to hold property in a form known as tenancy by the entirety.

Some of these changes will happen more or less automatically, but others will require action by same sex couples in Michigan.  If you are part of this group make sure to take all the steps necessary to protect yourself.

Here is just the  tail end of the majority decision authored by Justice Kennedy of United State Supreme Court:

. . . The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. * * * No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. . .

 

Michigan post DOMA –and pre Supreme Court decision on DeBoer v Snyder

Michigan has been slow to embrace same sex couples and recognition of their rights and their life as whole people or whole families. (For instance, this state has been loathe to allow BOTH parents in same sex unions to adopt children jointly–leaving a child in possible limbo should one of the parents dies.) And just this week, many of our state senators and representatives are pushing legislation that would hamstring or eliminate local ordinances that differ from state law or regulation–this could affect things like local minimum wage rules, but also anti-discrimination ordinances which several cities have adopted.

And it was only a few weeks ago that Michigan taxpayers all footed the bill of outside counsel hired by the Attorney General of the state, to argue against recognition of gay marriage, in front of the U.S. Supreme Court.

The Supreme Court is expected to rule in June of this year whether or not individual state laws or constitutional provisions akin to DOMA (Defense of Marriage Act) are valid or not.  There is another question those before the Court were asked to consider.  It is this:  Even if state A may restrict same sex marriage licenses or weddings in their state, must state A at least recognize such marriages from state B if state B allows such marriages?

While we await some guidance and determination from the U.S. Supreme Court on the DeBoer v Snyder and affiliated cases, there are still things lgbt couples might want to look at, in regards to some of their rights, some benefit availability, and the approaches various Federal departments are taking.

In that regard, the news is fairly good for married same sex couples and one might take hope, despite what may happen at an individual state level.

In 2013, the Supreme Court threw out section 3 of DOMA, and by the summer of 2013, most every federal agency was tasked with determining how the Court ruling would affect their work going forward.  Would spouse be defined broadly to extend to same sex couples?  Could a legally married same sex couple avail themselves of spousal benefits or survivor benefits under Social Security?  Questions abound.

Below is a short (and certainly incomplete) list of websites and links to various Federal agencies, so you can explore for yourself just what your rights might be.  And as always, if you have questions or concerns or think some sort of advocacy might be in order, feel free to contact us at Bradley Vauter & Associates, P.C.

 

U.S. Department of Health and Human Services (HHS)

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/samesexmarriage/index.html

 

Department of Homeland Security

U.S. Citizenship and Immigration Services

http://www.uscis.gov/family/same-sex-marriages

 

Medicare.Gov

http://www.medicare.gov/sign-up-change-plans/same-sex-marriage.html

 

Medicaid.Gov

http://medicaid.gov/Federal-Policy-Guidance/Downloads/SHO-13-006.pdf

 

http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SMD-14-005.pdf

 

Housing and Urban Development (HUD)

http://portal.hud.gov/hudportal/documents/huddoc?id=15-01hsgn.pdf

 

http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination

 

IRS.Gov

http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Married-Couples

 

http://www.irs.gov/Retirement-Plans/Treatment-of-Marriages-of-Same-Sex-Couples-for-Retirement-Plan-Purposes

 

http://www.irs.gov/uac/Newsroom/New-IRS-Video-Helps-Same-Sex-Couples

 

Social Security Administration

https://faq.ssa.gov/ics/support/KBList.asp?folderID=452

 

Veterans’ Administration

http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2562

http://www.va.gov/opa/marriage/

Also, check out our resources page — where we list resources by categories and post a number of useful links that will take you from our pages to the websites of other helpful organizations.

 

Incorporate Transition Planning into Special Education Plans

This article is meant to address the tricky area of Transition for students with disabilities. Since April is Autism Awareness Month, attorney Mary Kathryn McKinley has written this piece with tips and ideas to help assure that transition services are built into the plan. Postsecondary outcomes are sometimes minimized in the quest to graduate. But that might be a mistake. Instead, McKinley suggests careful preplanning. Such preplanning can make the difference for these students and ensure that they receive crucial services by extending the window of eligibility.

 

 

DIPLOMA DILEMMA

Mary Kathryn McKinley, Esq.

Bradley Vauter & Associates, P.C.

 

The wave of students with autism spectrum disorders (ASDs) is hitting the transition shore- preparing for the challenges of adult life as they navigate the significant challenges that stand between them and careers, further education, independence, and personal fulfillment. Their needs are many and the options available to them, at this crucial juncture, while increasing, remain limited.

 

Students with ASD are, in general, full of potential. According to the CDC, almost half (46%) of children identified with ASD had average or above average intellectual ability (IQ greater than 85).[1]

 

But in order to be successful adults, most of these students need significant transition supports and services. Without transition supports and services, they will likely never have the opportunity to realize their full potential and contribute their many gifts to society.

 

The challenge of supporting this population of students as they transition to adulthood is daunting. At the end of the 2013-2014 school year, in Michigan, 831 students with ASDs exited high school.[2] Nationally, the numbers of students with ASDs are rising at an alarming rate. For students born in 1996, 1 in 125 has an ASD; for children born in 1998, 1 in 110 have ASDs, and for children born in 2002, 1 in 68 has an ASD.[3] This means that the number of students with ASDs exiting high school in 2020 will be double what they are now, and likely continue similar increases in the future.

 

 

What exactly is “Transition?”

“Transition” can mean many things in many contexts in special education. It can mean the challenges of moving from one class to another, or from one classroom to another, or from one building to another. But most frequently, and here, the word refers to Transition services, a crucial component of the Individualized Education Plan (IEP) for every student with disabilities.

 

School districts are charged under the Individuals with Disabilities Education Act (IDEA) not only with providing a free, appropriate public high school education to students with defined special needs, but they are also responsible for preparing students with disabilities for life after high school. [4]

Special education students are entitled under IDEA to a robust array of specific, relevant, and meaningful transition services as part of their IEPs. “Transition” is defined as a “coordinated set of activities for a child with a disability” that is “results oriented” and aimed at “facilitating the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation… based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests…” [5]

By age 16, specific transition goals, individualized to the student’s interests and strengths, are required to be included in every IEP.[6] By the time that a student exits special education, the transition process should be largely completed, because the options available through IDEA terminate once a student’s eligibility for special education services ceases.

But when does that eligibility cease? This decision is left to the states, which can provide more eligibility than that mandated by IDEA, but not less. Michigan Administrative Rules for Special Education (MARSE) set forth Michigan’s special education rules.

Michigan provides special education services to qualified individuals up to age 26, unless the student has “graduated from high school.” [7]   New proposed rules would change the wording significantly, to cut off special education services for students who have “completed the requirements for a regular high school diploma.” [8]

What this means in practice is that no longer will school districts be allowed to provide additional services, such as transition services, after sufficient credits towards a diploma have been earned, by putting the actual graduation formalities on hold. If the rule changes, as soon as sufficient credits are earned, eligibility for special education services ceases.

 

 

Diploma vs. Certificate

The students with ASDs (as well as students with other disabilities) who leave high school in Michigan fall roughly (but not exclusively) in to two groups: those who receive a regular diploma and those who receive a Certificate of Completion. Only those students who earn a regular diploma are cut off from additional services before age 26.

 

In order to earn a regular diploma, students in Michigan must complete all of the requirements of the Michigan Merit Curriculum (MMC), or complete a modified version of this (a “Personal Curriculum”).[9] The MMC is a rigorous regimen of coursework that includes Algebra II, Chemistry or Physics, English, Social Studies, Civics and other requirements.[10]

Students who complete other, less structured, less rigorous coursework are generally awarded a Certificate of Completion and are exempt from the ambitious MMC curriculum. They can fashion a high school curriculum that meets their individual preferences.

How and when do students make the election to aim for a diploma or a Certificate? It varies from student to student and from school to school. Essentially all students are on the diploma track until they are taken off of it. And at some point, often as early as middle school, some students with ASDs in particular are advised that the “diploma track” would be too stressful and thus they are advised to lower their expectations.   Part of this “stress” is occasioned by the fact that Michigan is a state that exclusively promotes “inclusion” as the gold standard in education.

 

Inclusion is the practice of teaching all students together, regardless of their learning challenges. Thus a student who is not neuro-typical, who has focus and attention difficulties, processing delays, sensory challenges and the like is expected to learn at essentially the same rate and in essentially the same manner as his or her nondisabled peers. That is another important discussion, best left to another day.

 

Students who choose a Certificate path have time available in high school for transition services, such as vocational training, placements, and practical courses aimed at helping them live independently. After completing high school and receiving their Certificate, these students remain eligible to receive additional services, usually through their intermediate school district, until they are 26 years old.

The law is not so thoughtful towards students with disabilities, especially students with ASDs, who earn a diploma. These students generally have the same types of challenges as their counterparts who elect to pursue a Certificate, and the same multifaceted transition needs. But the requirements of the MMC leave little time in high school for anything except academics, and when students do complete these MMC requirements, they lose eligibility for further, crucial transition services. They are forced out of the protections of IDEA at age 18 or so and receive roughly 8 fewer years of post high school transition services than do their counterparts who elect to work towards a Certificate.

 

 

 

At the moment when a diploma is earned, students with disabilities often find themselves not rejoicing, but panicking, because now the most valuable doors to the future for them – through transition services – have, ironically, closed.

Is there any way around this?

There is, unfortunately, no perfect solution. But many students who work towards a diploma are making the election to prolong high school beyond the typical four years. They are holding back that last credit needed for graduation until a fifth and/or sixth year of services, which can now be primarily transition based, are completed.

This can be the time for vocational training and placements, for courses teaching independent living skills, perhaps for postsecondary coursework with supports necessary for success, to prepare the student for further education. Many if not all of these services can be provided outside of the high school building, depending on the school district.

A very deliberate and comprehensive IEP, with the best possible transition goals, must be in place in order for this strategy to succeed. Planning begins, optimally, when the student enters high school or before. It begins with a clear focus on the desired outcomes: the student’s vision for adulthood, for the options that must be available, all based on real interests and strengths. Once this clear picture is in mind, the specific transition services and supports that are needed to achieve these goals will also become clear.

Always keep in mind that robust transition goals that focus on independent living, the ability of the student to participate in rewarding employment, and perhaps continued education, are required under IDEA. But too frequently IEPs contain perfunctory, boilerplate transition goals masquerading as legitimate goals. Vigilance, vision, and a careful plan, well thought out and revised as needed, will ensure strong goals. The resulting IEP will be a powerful argument for the school to agree that additional time is needed for those goals to be reached.

Individualized, meaningful, challenging, well-designed transition goals, necessarily and by definition, take time for the student to master. With careful planning and attention to detail, and perhaps a few extra high school years, students with ASDs who elect to pursue a diploma won’t find the door shut on their ambitions when they graduate.

[1] Center for Disease Control and Prevention, Data as of Feb. 2015 (http://www.cdc.gov/ncbddd/autism/data.html)

[2] Michigan Department of Education data

[3] Id.

[4] 20 U.S.C § 1400 (d) (1) (a)

[5] 20 U.S.C. § 1401(34)); 34 CFR § 300.43

[6] 34 CFR § 300.320(b), (c); 20 U.S.C. §1414 (d)(1)(A)(i)(VIII)]

[7] MARSE, R 340.1702

[8] https://www.michigan.gov/documents/mde/Proposed_Rule_Changes_2014_447265_7.pdf

[9]  MCL §380.1278b

[10] MCL §380.1278a

Welcome News about Students With Disabilities

A recent report demonstrates a bit of progress, in terms of graduation.  See the report here: http://www.disabilityscoop.com/2015/03/17/graduation-rates-inch-up/20141/

In Michigan, the Michigan Protection and Advocacy (a non-profit agency) tries to to advocate and protect the legal rights of people with disabilities in Michigan. According to information on their website “MPAS services include information and referral, short-term assistance, selected individual and legal representation, systemic advocacy, monitoring, and training.”  Learn more here:  http://mpas.org/

Progress sometimes comes though, not only through groups and organizations but the persistent and practical pushing of good plans to see that children get what is fair and useful under IDEA (Individuals with Disabilities Education Act).

We can help families, sometimes with simple but thorough consultations, to empower them in the development  and application of a plan.  That might just require a good review and discussion with a family, so they are empowered to act on their own.  Sometimes more is required though.  Among things we’ve done:

  • Assisting with planning for Individualized Education Program (IEP) meetings, attending IEP meetings with families, ensuring compliance with the provisions of IDEA and the Michigan Administrative Rules in addressing students’ needs through a comprehensive approach;
  • Advocating for students as to areas of disagreement between families and districts;
  • Challenging incorrect assumptions which form the basis for flawed recommendations (ensuring that districts share the high expectations of families, to the maximum extent possible);
  • Setting up special needs trusts;
  • Assisting with transitions and plans beyond the school years.

Please contact us if you’d like a consultation and review–which can often be done quite reasonably–or if you need more extended help too.

 

 

Second Marriages and Estates: Protection for the Widow or Widower “Left Out” of Older Wills

By Richard Rooney

Today many people are living longer than ever. At the same time cultural norms seem to have become more accepting of divorce. Consequently, knowing seniors in a second marriage is somewhat commonplace.

Love knows no seasons, and it’s great that people can find love in the later years of their life—but second marriages can lead to legal complications without proper planning. Seniors with second marriages often have children on both sides with a major stake in the old estate plan. Costly probate litigation can result from the conflicts of financial interests if wills or trusts and beneficiary designations haven’t been revised.

The best course of action for any couple, regardless of age, is to update their estate plan when major changes in their life, such as a second marriage, occur. But if that wasn’t done, the widow or widower still has options.

Fortunately, Michigan’s probate code allows for a number of overlapping protections for surviving spouses who are mistakenly left out of an estate plan.

Some of those protections are limited to just the deceased spouse’s probatable assets, meaning only the assets held solely in the deceased spouse’s name at the time he/she passed.

Some of the other protections are able to reach revocable trust assets.

And, in some circumstances the protections are subject to an “offset.” This means amounts the surviving spouse may have received outside of probate–such as a life insurance policy or jointly held property– factor into the final amount the spouse can get from probate assets.

Spousal Election

The first major statutory protection for surviving spouses “missed” in a will is the spousal election. Every surviving spouse, unless that spouse has waived the right in writing, has the option to abide by the terms of the will or take an “elective share.” An elective share is half the “intestate share” reduced by half the value of assets the surviving spouse received outside of the probate estate.

The intestate share, which is the amount a spouse would receive if his/her spouse died with no will, can range from the whole probate estate to $145,000 (2014 inflation adjusted numbers) plus half of the remainder of the probate estate, depending upon what other heirs the deceased spouse left.

As a spousal election example, Spouse A dies, leaving a $400,000 probate estate and adult children. New Spouse B was never added to the estate plan or mentioned in the will but did receive $100,000 from a “pay on death” bank account or a “joint” bank account. Spouse B’s intestate share would be $272,500 ($145,000 plus half the remaining $255,000 of the probate estate). That means Spouse B can elect half of that amount ($136,250) reduced by half of the non-probate bank account payout ($50,000). Spouse B is entitled to $86,250 as a spousal elective share. This elective share is available to a widow or a widower.

Take note that a deadline is involved in making the spousal election and the election cannot reach trust assets.

Pretermitted Spouse

The second protection surviving second spouses may use is the pretermitted spouse provision. The pretermitted spouse provision allows the surviving spouse whose deceased spouse has a will executed prior to the marriage to claim the full intestate share of the probate estate.

Unlike an elective share situation, the estate “pool” is reduced by anything devised to children of the deceased spouse who are not also children of the surviving spouse, whether devised directly or through a trust. Furthermore, if there is evidence that the surviving spouse was provided for outside of probatable assets, the probate court may disallow the provision’s applicability entirely.

A surviving spouse can both make a spousal election and make a claim as a pretermitted spouse. The probate court will grant the greater of the two amounts if the spouse qualifies for both.

Exemptions/Allowances

The final set of protections for surviving spouses are known as allowances or exemptions and there are three of these. The purpose of these exemptions is to allow the surviving family some financial stability and security during the period of readjustment to losing a family member.

The three exemptions are known as the “Homestead Allowance,” the “Exempt Personal Property,” and the “Family Allowance.”

The homestead allowance, which is $22,000 for 2014, is an amount granted to surviving spouses to insure that they don’t end up out in the cold, so to speak. Despite the name there does not have to be a homestead involved, the amount is just a cash amount to which any surviving spouse is entitled.

The surviving spouse is also entitled to claim up to $14,000 (2014 numbers) worth of personal property of the estate that is “exempt” from other claims. The spouse may claim specific assets and may even claim cash if there is not sufficient personal property to satisfy the exemption amount. All surviving spouses are entitled to this exemption.

The family allowance is another allowance, for the surviving family to help support the possible loss of income for up to a year. The amount allowable, without probate court approval, is $26,000 (2014 numbers). However, this allowance is at the discretion of the personal representative and the surviving spouse would typically have to show a financial need in order to for a family allowance to be granted.

All three of the exemptions and allowances can be taken in addition to any elective share or pretermitted intestate share. The exemptions are taken before other claims and while they do not reduce the elective share directly, they will reduce the size of the estate. Additionally, Michigan’s Estate and Protected Individuals Code (EPIC, also known as the probate code) allows a surviving spouse to draw these claims from non-probate assets including revocable trusts–if the probate estate is not able to fully pay them.

Conclusion

This group of overlapping protections are available to surviving spouses under Michigan’s probate code, but there are important time frames for claiming them. Ideally preventing election situations in the first place with an accurate estate plan is the best approach.

If you find yourself heading into a second marriage later in life, consider revising your estate plans right away—be proactive. But if you have been omitted, and your spouse dies before they ever updated their documents, you may want to consult an attorney for assistance. Bradley A. Vauter and Associates, P.C.,  deals with probate and estates cases and would be glad to assist you.