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What Are The Inheritance Rights Of The Second Spouse If The Will Left Everything To The First Spouse?

Picture this scenario that could come up in estate administration. A testator creates a last will and testament that leaves his entire estate to his first wife. Many years later, the testator divorces the first wife and subsequently marries his second wife. The testator dies and the personal representative admits his last will and testament to the probate court. The second wife is horrified to learn that the deceased testator never bothered to change his will and the entire estate is still conveyed to his ex-wife! What rights does the second wife have to inherit from the estate?

The second wife is considered under Michigan law to be a "pretermitted spouse", meaning that she was likely a person who would stand to inherit under a will but is not included in the document because the testator did not marry her until after the will's execution. Fortunately, the Michigan Legislature has created a statutory mechanism to deal with the pretermitted spouse situation. "[I]f a testator's surviving spouse marries the testator 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 as to that portion of the testator's estate..." MCL 700.2301(1).

However, the pretermitted spouse is NOT allowed to receive any of the following:

  • "Property devised to or in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not the surviving spouse's child." MCL 700.2301(1)(a).
  • "Property devised to or in trust of the benefit of a descendant" of a child of the testator who is not the surviving spouse's child." MCL 700.2301(1)(b).
  • Property that passes to the child or descendant of a child of the testator who is not the surviving spouses' child due to receiving a substitute devise under MCL 700.2603 or MCL 700.2604. MCL 700.2301(1)(b).

The pretermitted spouse CANNOT inherit under this provision if any of the following are true:

  • "From the will or other evidence, it appears that the will was made in contemplation of the testator's marriage to the surviving spouse." MCL 700.2301(2)(a).
  • "The will expresses the intention that it is to be effective notwithstanding a subsequent marriage." MCL 700.2301(2)(b).
  • "The testator provided for the spouse by transfer outside the will, and the intent that the transfer 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." MCL 700.2301(2)(c).

In satisfying the pretermitted spouse's share under this statute, devises made by the will to the testator's surviving spouse, if any, are applied first. MCL 700.2301(3). Thereafter, all other devises in the will (except those for the benefit of the child or descendent of the testator, not the surviving spouse, and the substituted devise under MCL 600.2603 and MCL 600.2604) are abated next. The pretermitted spouse then takes the intestate share from the remainder of the estate that he or she would receive if there was no will.

The surviving spouse can take BOTH the pretermitted spouse share under MCL 700.2301 (if eligible) and the general spousal elective share under MCL 700.2202(2). The spousal elective share is the right of the surviving spouse to take an intestate share against the terms of the will if he or she was disinherited by its terms. If the surviving spouse takes both the pretermitted share and the spousal elective share, then the amount of the pretermitted share reduces the amount the surviving spouse is entitled to under the spousal elective share. MCL 700.2301(4). The Michigan Court of Appeals determined in Estate of Sprenkle-Hill, 265 Mich App 254; 703 NW2d 191 (2005) that a surviving spouse may elect to take the spousal elective share only, even if he or she is entitled to the pretermitted spouse share, if the surviving spouse determines that taking the spousal elective share only will yield a larger amount. The surviving spouse is well advised to speak to an experienced probate attorney to determine whether the pretermitted share, the spousal elective share, or both together (or even simply abiding by the terms of the last will and testament) will produce the best result.

Surviving spouses have numerous other rights they may exercise against the estate IN ADDITION to the pretermitted spousal share or the elective statutory share:

  • Family Allowance: The surviving spouse is entitled to a reasonable family allowance for his or her maintenance during the administration of the estate. MCL 700.2403. The allowance may be paid in a lump sum or periodic payments. The statute does not specify a maximum dollar amount, but the personal representative may grant up to $18,000.00 (adjusted to $27,000.00 in 2018) paid as a lump sum or periodic payments with additional amounts that may be authorized by the probate court. MCL 700.2405.
  • Exempt Property: The surviving spouse is "entitled to household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000.00 (adjusted to $15,000.00 in 2018) more than the amount of any security interests to which the property is subject." MCL 700.2404.

The decision by the Michigan Court of Appeals in Estate of Bennett, 255 Mich App 545; 662 NW2d 772 (2003) provides a great example of how the pretermitted spouse share works. The testator in that case left a last will and testament that bequeathed his entire estate to his first wife, but in the event of her death then the estate would be given in equal shares to his four natural children and his four stepchildren. The testator's first wife died and he married his second wife, but he never changed the terms of his will. The second wife elected to take the pretermitted spouse share, and the probate court determined that the estate would be divided 50% to the second wife and the remaining 50% in equal shares to the other eight devisees. The natural children of the testator appealed this decision, claiming that the probate court misapplied the pretermitted spouse statute as to their share.

The Michigan Court of Appeals determined that the probate court made an error. No one contests that the intestate share of the pretermitted spouse is 50% of the balance of the estate per MCL 700.2102(1)(f) (since none of the decedent's surviving descendants are descendants of the surviving spouse). However, MCL 700.2301(1) states "[i]f a testator's surviving spouse marries the testator 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 died intestate as to that portion of the testator's estate, if any, that is not any of the following: (a) Property devised to a child of the testator who was born before the testator married the surviving spouse and who is not the surviving spouse's child." If there was no pretermitted spouse, then each child and stepchild of the decedent would be entitled to a 12.5% share of the estate. MCL 700.2301(3) further provides "[i]n satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not the surviving spouse's child or a devise." The plain language of MCL 700.2301(1) states that the 12.5% devise of the estate to each natural child is undisturbed. Therefore, the Michigan Court of Appeals determined that, under the pretermitted spouse election, the surviving second wife would receive 50%, the four natural children would receive 12.5% each, and the testator's stepchildren each receive 0% (because their shares are abated by the devises to the natural children per MCL 700.2301(3)).

The statutes regarding spousal shares can be confusing in application and its not always clear what the best choice is. A skilled probate attorney can be of great assistance in advising you how to proceed, whether you are the personal representative, the surviving spouse or any other heir. As the surviving spouse, be aware that there are strict timelines to make elections against the estate after which you may forfeit your rights.

If you have questions about estate administration or believe you may need legal representation in your probate matter, then do not hesitate to contact the experienced probate lawyers at Kershaw, Vititoe & Jedinak PLC for assistance today.

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