A recent case caught my eye. First, the facts had an interesting twist. But, second, divorce is sometimes considered by couples who wish to protect assets from Medicaid or for other financial reasons.
In Burnett v. Burnett, the court looked at a divorce case. But, this was no ordinary divorce case. The traditional couple was married in 1984. However, in 2003, the party to the marriage who was born a man underwent gender reassignment surgery and became “Bobbie.” At that time, Devon, who was born and continued to be a woman, was not competent. Devon’s children, as her conservators, sued for divorce.
There were two primary issues in the case. First, since Michigan does not recognize same-sex marriage, did the gender reassignment surgery act as an automatic divorce? Devon’s conservator/children argued that the reassignment surgery acted as an automatic divorce. The court found that it did not. The parties were not the same gender when they were married back in 1984. The fact that one party underwent gender reassignment surgery did not invalidate the marriage.
Next, the court addressed whether a conservator can bring a divorce action for the conservatee, or, if divorce is a personal action and only exercisable by the individual himself or herself. The court found that a conservator may bring any action on behalf of the conservatee, including a divorce action.
Thus, in Burnett v. Burnett, Devon’s children/conservators were able to bring a divorce action on Devon’s behalf.
While few of your clients will have these circumstances arise, it is interesting to note that divorce is still a possibility, even after the incapacity of a client. Divorce is a drastic step that Medicaid rules now make less attractive. Medicaid now allows a substantial Community Spousal Resource Allowance that keeps the “well” spouse from being completely impoverished. But, if the circumstances require a divorce, it may be possible to achieve, even if one of the parties no longer has capacity.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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