A person is said to have died “intestate” if he or she did not have a last will and testament on the day of his death. In the event this occurs, Michigan law proscribes the order of heirs that would be entitled to inherit from this intestate estate. The highest priority is given to the surviving spouse of the decedent, followed by descendants, parents, siblings and then more remote relatives.
According to MCL 700.2102(1), the intestate share of the surviving spouse is as follows:
- “(a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.”
- “(b) The first $150,000.00 ($229,000.00 in 2018*), plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.”
- “(c) The first $150,000.00 ($229,000.00 in 2018*), plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.”
- “(d) The first $150,000.00 ($229,000.00 in 2018*), plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.”
- “(e) The first $150,000.00 ($229,000.00 in 2018*), plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.”
- “(f) The first $100,000.00 ($153,000.00 in 2018*), plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.”
*This amount may be adjusted by the Michigan Department of Treasury pursuant to MCL 700.2102(2).
According to MCL 700.2103, “[a]ny part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent”:
- “(a) The decedent’s descendants by representation.”
“Descendant” means “in relation to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this act.” MCL 700.1103(k).
“Child” includes, “but is not limited to, an individual entitled to take as a child under this act by intestate succession from the parent whose relationship is involved. Child DOES NOT include an individual who is only a stepchild, a foster child, or a grandchild or more remote descendant.” MCL 700.1103(f). However, this definition DOES include legally adopted children.
The parent-child relationship is ESTABLISHED as to a husband and wife if the child was born or conceived during a marriage, even if the husband is not the biological father. A man is a child’s natural father for intestate succession purposes if he establishes paternity by completing an acknowledgment of parentage, appears as father on the child’s birth certificate, has parentage established by a court through a paternity suit or order of filiation or under the revocation of paternity act, or otherwise established a mutually acknowledged relationship with the child from before the child’s 18th birthday and ending on the father’s death. MCL 700.2114(1).
The parent-child relationship is SEVERED by termination of parental rights by a court of competent jurisdiction, the adoption of the child by people other than a stepparent (adopted individual is considered the child of his or her adoptive parent or parents and not of his or her natural parents), or the natural parent has BOTH failed to openly treat the child and his or her own AND refused to support the child. MCL 700.2114(2)-(4).
“If …. a decedent’s intestate estate or a part of the estate passes by representation to the decedent’s descendants, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.” MCL 700.2106(1).
- “(b) If there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent.”
“Parent” includes, “but is not limited to, an individual entitled to take, or who would be entitled to take, as a parent under this act by intestate succession from a child who dies without a will and whose relationship is in question. Parent DOES NOT include an individual who is only a stepparent, foster parent, or grandparent.” MCL 700.1106(i). However, this definition DOES include parents who have legally adopted the decedent.
The rules regarding the establishment or severance of a parent-child relationship under MCL 700.2114 apply in determining the parent’s right to inherit.
- “(c) If there is no surviving descendant or parent, the descendants of the decedent’s parents or of either of them by representation.”
The individuals covered under this provision included the decedent’s siblings, the decedent’s nephews or nieces, or descendants of either of them.
“If, …, a decedent’s intestate estate or a part of the estate passes by representation to the descendants of the decedent’s deceased parents or either of them…, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest the deceased parents or either of them, …, that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.” MCL 700.2106(2).
The rules regarding the establishment or severance of a parent-child relationship under MCL 700.2114 apply in determining the heir’s right to inherit at EVERY generational link between the heir and the decedent. A severance at any level could that heir off.
- “(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the 1/2.”
The individuals covered under this provision included the decedent’s grandparents, the decedent’s aunts or uncles, the decedent’s first cousins, or descendants of either of them.
“If, …., a decedent’s intestate estate or a part of the estate passes … to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest … the deceased grandparents or either of them, that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.” MCL 700.2106(2).
The rules regarding the establishment or severance of a parent-child relationship under MCL 700.2114 apply in determining the heir’s right to inherit at EVERY generational link between the heir and the decedent. A severance at any level could that heir off.
According to MCL 700.2105, “[i]f there is no taker under the provisions of this article, the intestate estate passes to this state.” The surviving kin of the decedent that are more remotely related than the grandparents of the decedent or their decedents (e.g. great-grandparents, second cousins, etc.) are NOT considered heirs eligible to inherit under Michigan’s intestate succession laws. If there are no qualifying heirs, then the entire estate escheats to the State of Michigan.
The following additional rules apply to any individuals who might be entitled to inherit under the intestate succession laws:
- The individual must survive the decedent by at least 120 hours. MCL 700.2104.
- A relative of half-blood (e.g. half-sibling) inherits the same share he or she would inherit if he or she were of the whole blood. MCL 700.2107.
- An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. MCL 700.2108.
- If the individual owed a debt to the decedent, the debt is charged only against the intestate share of the debtor and not against the share of anyone else. If the debtor predeceases the decedent, the debt is not taken into account in computing the intestate share of the debtor’s descendants. MCL 700.2110.
- An individual is not disqualified as an heir on the basis that the individual (or any other person through whom the individual claims a blood relation to the decedent) is or was an alien of the State of Michigan or the United States of America. MCL 700.2111.
- An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share. MCL 700.2113.
The laws regarding intestate succession can lead to surprising and unintended consequences for the distribution of the intestate estate. In fact, intestate succession might run completely contrary to the decedent’s final wishes. This situation often leads to conflict in the probate court as personal representatives, family members and possibly illegitimate children or con-artists battle to determine who is or who isn’t an heir. To avoid the application of intestate succession, a person must either create a valid last will and testament or place his or her assets in a revocable or irrevocable trust. If you have questions about estate planning or intestate succession, do not hesitate to contact the experienced probate attorneys at Kershaw, Vititoe & Jedinak PLC.
