Michigan’s probate laws are somewhat lopsided in favor of wives. It is one of only a few states that still recognize a woman’s dower right to a percentage of her husband’s property at death, with no corresponding law to protect husbands. Like other states, Michigan also recognizes intestacy and elective share rights, regardless of gender. A spouse must take decisive action to secure most of these rights and the marriage must meet certain legal requirements.
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A surviving spouse’s intestacy rights apply when a decedent dies without a will. In Michigan, if your spouse left no surviving children or parents, you inherit his entire estate. Otherwise, you must share the estate with these other individuals. You're not required to do anything to secure your intestate share of your spouse's estate. When a decedent dies without a will, the court appoints a personal representative to oversee probate. This individual is obligated to follow the letter of the law in dispersing the decedent’s assets to the estate's heirs. However, if you are the decedent's wife, you can file written notice with the court if you choose to, indicating you want your intestate share rather than a dower share. If you are the decedent's husband, your only option is your intestate share.
Elective Share Rights
If your spouse left a will, you have some options if you're not satisfied with the terms of the will. Surviving husbands or wives can accept an "elective share" of the estate. An elective share is a percentage of your spouse’s probate assets. Probate assets do not include any assets that pass directly to named beneficiaries or assets your spouse might have placed in a trust. Therefore, if no probate assets exist, your elective share would be zero. If your elective share would be more than what your spouse left you in the will, however, and you want to exercise your right to this option, you must notify the probate court in writing. If you're a surviving wife, you also have the option to choose your "dower rights" instead.
Because Michigan recognizes a widow’s dower rights, if you're a surviving wife, you can elect to take your dower rights in lieu of your right to intestate succession or in lieu of your right to claim an elective share. You're entitled to whichever alternative affords you a greater percentage of the estate. Michigan’s dower laws allow you to take a life estate in one-third of all property your spouse owned, including probate assets and non-probate assets. A life estate means you have use of this property for the rest of your life. However, you can’t bequeath it to your own heirs when you die -- it reverts back to your spouse's estate at that time. If you elect this life estate in place of your intestate inheritance, or in place of your right to an elective share, you must notify the court in writing of your choice.
Not every spouse is entitled to make a claim for an elective or dower share of a decedent’s estate. If spouses lived separately for a year or more prior to the decedent’s death, the survivor does not qualify unless the decedent abandoned or deserted the marriage. If the surviving spouse left and the decedent's estate can prove this, the surviving spouse does not have a claim. A spouse also has no rights after divorce.
References & Resources
- Onecle: Election of Surviving Spouse
- Raymond C. Barry & Associates: Choices of a Surviving Spouse
- ICLE: Planning to Avoid Spousal Elections
- Miller Johnson: Changing Divorce and Inheritance Laws Through Prenuptial Agreements
- Washtenaw County Trial Court: Probating a Decedent’s Estate – Formal Proceedings