Dealing with Tangible Personal Property In the Wills of a Married Couple
John A. Scott June 2017
It is commonly the case that a married couple will leave their tangible personal property to the survivor of them. Normally the survivor can be expected then to leave an item that was originally nominally the property of the first dying spouse to the person that the first dying spouse would have wanted to ultimately receive it. If it is not an item that the survivor has any use for then the regifting frequently occurs to the intended recipient shortly after the death of the first to die. Otherwise, the transfer occurs later during the life of the survivor or at his or her death by way of specific reference in the Will of the survivor or a list of gifts attached to the Will of the survivor.
This all works out reasonably well for couples that are first marriers. If this is the second or subsequent marriage or a cohabitation and there are children by prior marriages, the divisions of tangible personal property get to be somewhat more problematic. While it is still generally true that a couple jointly expect that on the death of the first to die the survivor gets to continue to use the household furniture, furnishings, and equipment, that expectation does not extend to heirlooms or items of particular sentimental attachment shared by the now deceased parent and his or her children. Giving all tangible personal property to the surviving spouse and hoping for the best may not be a good idea, as it is not uncommon that stepparents and stepchildren do not see eye to eye particularly after the death of the parent. Many hard feelings come to the surface and persist for years thereafter if these matters of inconsequential economic value, but very significant emotional value, are not attended to.
Because of the peculiarities of Michigan law regarding the lack of a presumption of joint ownership of tangible personal property by a married couple we suggest that for serial marriers they execute as a part their estate planning documents a statement of acknowledgment of joint ownership of the household furniture, furnishings, and equipment. To this statement can be appended lists of items that are specifically excluded and intended to be given on death to a child or person other than the surviving spouse. The surviving spouse then automatically gets the dining room table, the flatware, and the television set, etc.
Items of tangible personal property that are not furniture, furnishings, and equipment are given by a list attached to the Will or are given by the Will to the surviving spouse or to whomever is desired. Thus, disposing of the Parker shotgun, the Orvis bamboo rods, and the sapphire pinkie ring.
This sort of planning for the serial marriers (cohabiters) will solve a lot of the problems for the personal representatives of the estates of the couple. It is generally not a good idea to try to get cute and leave the Parker shotgun to the spouse for the spouse's lifetime and then to the son, Buster. If the spouse has not done a good job of maintaining it or sold it mistakenly in a garage sale there will be hell to pay.
If the couple dies together in a simultaneous fashion, then jointly held assets will be ½ to each. That may be a problem for the several sets of children but at least they are on an equal footing and with lists of gifts attached to the Wills the items of great significance should get where they are supposed to go.