Rights of Surviving Spouse and Children Part 2

The previous note dealt with certain allowances to which spouses and children were entitled. This note will deal with the right of a spouse to make certain elections, the rights of a spouse who was omitted in a premarital will and the rights of children omitted in the parent's will.

Spousal Elections

Pursuant to MCL 700.2202 the surviving spouse of a decedent who was domiciled in Michigan and who dies testate (with a will) may file with the court an election in writing that the spouse elects 1 of the following:

1. That the spouse will abide by the terms of the will.

2. That the spouse will take 1/2 of the sum or share that would have passed to the spouse had the decedent died intestate (without a will), reduced by 1/2 of the value of all property derived from decedent by any other means other than testate or intestate succession upon decedent's death. The property derived by the surviving spouse includes the following:

a. A transfer made within 2 years before the decedent's death to the extent that the transfer is subject to federal gift or estate tax.

b. A transfer made before the date of death subject to a power retained by the decedent that would make the property, or a portion of the property, subject to federal estate tax.

c. A transfer effectuated by the decedent's death through joint ownership, tenancy by the entireties, insurance beneficiary, or similar means.

3. If a widow, that she will take her dower right as provided by law. Dower entitles the widow to the use during her natural life, of 1/3 part of all the lands in which her husband was seized of an estate of inheritance at any time during the marriage. It would be rare for this election to be made.

In an intestate estate (without a will) if the surviving spouse is a widow, she may elect to take her intestate share or her dower rights. It should be noted that this election only applies to a widow and not a widower.

Within 28 days after the personal representative's appointment, the personal representative must give notice of the rights of election, allowances and exempt property to the surviving spouse. This may be accomplished by using Notice to Spouse of Rights of Election and Allowances, Proof of Service, and Election (PC 581). MCR 5.305(B) provides the proof of service of the notice does not need to be filed with the court. MCR 5.305(A) provides that no notice need be given in the following situations:

1. The right of election is made before notice is given.

2. The spouse is the personal representative or one of the personal representatives.

3. There is a waiver of the rights and allowances.

Pursuant to MCR 5.305(C) if the spouse exercises the right of election, the spouse must serve a copy of the election on the personal representative personally or by mail. The election may be made on the same form used to notify the spouse of her rights of election, (PC 581). The election must be made within 63 days after the date for presentment of claims or within 63 days after the service of the inventory upon the surviving spouse, whichever is later. The election may be filed with the court but such filing is not required unless there is supervised administration. The election must be made during the surviving spouse's lifetime. Pursuant to MCL 700.2202(4) if the surviving spouse is an incapacitated individual, the right of election may be exercised only by order of the court in which a proceeding as to that person's property is pending, after finding that exercise in necessary to provide adequate support for the incapacitated individual during that person's life expectancy. If the surviving spouse fails to make an election within the time specified, it is conclusively presumed that the surviving spouse elects to abide by the terms or the will or to accept his or her intestate share, except:

1. After the estate has been closed, there are after discovered assets.

2. During the administration of the estate and upon petition of the spouse, the court determines to permit the spouse to make an election because of estate litigation, allowance of additional claims against the estate, or for other good cause.

In rare situations where there may be an election of dower, MCR 5.305(D) provides that that if there is a minor or other person other than the widow under legal disability having no legal guardian or conservator, there may not be a hearing on the petition until after the appointment of a guardian ad litem for such person. A petition for the assignment of dower must include:

1. A full and accurate description of the land in Michigan owned by a deceased husband and of which he died seized, from which the petitioner asks to have the dower assigned.

2. The name, age, and address of the widow and the name and addresses of the other heirs.

3. 'The date on which the husband died and his domicile on the date of his death.

4. The fact that the widow's right to dower has not been barred and that she or some other person interested in the land wishes it set apart.

Premarital will

Pursuant to MCL 700.2301 if a surviving spouse marries the testator (individual making a will) after the testator executes his or her will, the surviving spouse is entitled to receive, as an intestate share, not less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate. The surviving spouse does not have a right to receive such a share if :

1. From the will or other evidence, it appears that the will was made in contemplation of the testator's marriage to the surviving spouse.

2. The will expresses the intention that it is to be effective notwithstanding a subsequent marriage.

3. The testator provided for the spouse by transfer outside the will, and the intent that the transfers be a substitute for a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

In calculating the intestate share that the surviving spouse may receive, the value of the decedent's estate is reduced by any portion that is devised to a child or other descendent of the decedent, born prior to the marriage, and who is also not a child of the surviving spouse. This would significantly limit this provision since most testators would presumably leave most of their estate to descendants. However, the surviving spouse can elect to take an elective share which was described in the first part of this note. If the intestate share is less than the spouse's elective share, it is part of (counts against) the elective share. If this intestate share is greater than the elective share, the spouse will receive this intestate share if the spouse elects to abide by the terms of the will.

Omitted Children

Pursuant to MCL 700.2302 if a testator (individual making a will) fails to provide in his or her will for a child of the testator born or adopted after the execution of the will, the omitted after-born or after-adopted child is entitled to a share of the estate unless:

1. The omission was intentional.

2. The parent provided for the omitted child by a transfer outside of the will and the parent's intent for a substitute transfer can be established.

3. The will devised substantially all of the estate to the other parent of the omitted child.

The share of an omitted child will be either:

1. An intestate share, if the parent had no other living children

2. A share equal to that devised to other children. If at the time of execution of the will the testator fails to provide in his or her will for a living child solely because he or she believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.

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