The law is complicated when it comes to the rights that a surviving spouse is entitled to with respect to his or her deceased spouse’s estate.  Under Michigan law, a surviving spouse is entitled to claim an inheritance despite what may have been left to him and her in the deceased spouse’s will.

Understanding the importance of short deadlines, and the various decisions and elections that are available to a surviving spouse is paramount.

What Happens If My Spouse Dies Without A Will?

If your spouse died without a will, the law of intestate succession will govern.  The intestate share of the surviving spouse will depend on whether or not the decedent had living parents or descendants. The following table illustrates the intestate share of the surviving spouse:

Heirs At Law (Other Than Surviving Spouse)Surviving Spouse’s Intestate Share
No descendant or parentThe entire estate
All descendants are also descendants of the surviving spouseThe first $150,000 plus 1/2 of any balance
If no descendants but a parent of the decedentThe first $150,000 plus 3/4 of any balance
All descendants are also descendants of the surviving spouse, and surviving spouse has a descendant that is not a descendant of decedentThe first $150,000 plus 1/2 of any balance
If one or more of the decedent’s descendants are not descendants of surviving spouseThe first $150,000 plus 1/2 of any balance
If none of the decedent’s descendants are descendants of the surviving spouseThe first $100,000 plus 1/2 of any balance

Spousal Elective Share

Pursuant to MCL § 700.2202, a surviving spouse of a decedent who was domiciled in Michigan may file an election in writing that elects one of the following:

  • That the surviving spouse will abide by the terms of the decedent’s Will;
  • That the surviving spouse will take her dower right (as provided by law); or,
  • That the surviving spouse will elect ½ of the intestate share that would have passed to the surviving spouse reduced by ½ of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death, which includes:
    • A transfer made within two years before the decedent’s death to the extent ath that transfer is subject to federal gift or estate taxes;
    • 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;
    • A transfer effectuated by the decedent’s death through joint ownership, tenancy by the entireties, insurance beneficiary, or similar means.

The right of election of the surviving spouse must be exercised during the lifetime of the surviving spouse. The election must be made within 63 days after the date for presentment of claims or within 63 days after service of the inventory upon the surviving spouse, whichever is later.

What If I Am Not Mentioned In My Spouse’s Will?

If a surviving spouse married the testator (person who has made a will) after the testator prepare his or her will, the surviving spouse has a right to receive, subject to certain limitations, an intestate share of the deceased spouse’s estate, as described above. MCL § 700.2301. These limitations include property devised in trust for the deceased spouse’s child, or his or her descendant, who is not also a descendant of the surviving spouse. See, e.g.In re Estate of Warren, 2006 Mich. App. LEXIS 3399 at *2 (Mich. Ct. App. 2006); In re Estate of Bennett, 662 N.W. 772 (Mich. Ct. App. 2003).

Notice to Surviving Spouse of Right of Election

The personal representative of the decedent’s estate must give the surviving spouse notice of his or her rights of election within 28 days after the personal representative’s appointment. MCR 5.305.  Of course, the no notice needs to be given to the surviving spouse if: (1) the surviving spouse is serving as the personal representative; (2) if there was a waiver of the rights and allowances; or (3) the right of election was made prior to notice being given.

Additional Allowances and Exemptions

A surviving spouse in Michigan is also entitled to additional allowances, such as the family allowance to provide support during the administration of the estate.  Further, the surviving spouse may be entitled to Homestead exemption in the marital home, along with the right to treat certain personal property as exempt property.

Importance of Waiver

The rights of the surviving spouse to a share under intestate succession, homestead allowance, election, dower, exempt property, or family allowance may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. MCL § 700.2205.

For additional information contact a Michigan attorney to learn more about the rights afforded to a surviving spouse.