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Can A Spouse Inherit From The Decedent If Death Occurred During Divorce Proceedings In Michigan?

by | May 5, 2020 | Family Law, Wills, Trusts And Estates |


A surviving spouse has significant inheritance rights when it comes to the deceased spouse’s estate.  Even if that spouse was disinherited in the decedent’s last will and testament, he or she may still be able to claim a spousal election against the terms of the will.   The surviving spouse is also entitled to a family allowance, homestead allowance and exempt property from the estate before any claims from creditors are paid.  However, that spouse does not get to inherit from the estate if he or she was divorced, had the marriage annulled, or otherwise neglected and abandoned the other spouse according to law.  Does a spouse that is going through divorce proceedings where the other spouse died have any right to inherit if there was no final judgment of divorce granted?  Is he or she out of luck?

In Estate of Von Greiff, __ Mich App __ ; __ NW2d __ (Docket No. 347254)(2020), the Michigan Court of Appeals addressed this very issue.  Husband and wife were married for 15 years, but the husband was unfaithful and the parties would argue fiercely.  The wife filed for divorce on June 1, 2017.  The divorce moved slowly and the parties lived apart for over one year, with husband in an assisted living facility and the wife in the marital home.  The parties negotiated a settlement, but the husband died on June 17, 2018 (over a year after the divorce action was filed) and shortly before the final consent judgment of divorce can be signed.  At the time of death, husband and wife were still legally married.  The husband’s daughter filed a petition in Marquette County Probate Court seeking a declaration that the wife was not the surviving spouse.  Specifically, the daughter alleged that the wife “[w]as willfully absent from the decedent spouse for a year or more before the decedent spouse’s death” contrary to the Estates and Protected Individuals Code, so she was not entitled to inherit.  The probate court agreed with the daughter and found that the wife intentionally absented herself from her husband, physically and emotionally, for more than a year before death and, therefore, she did not qualify as a surviving spouse.  The wife appealed to the Michigan Court of Appeals.

For the purposes of testate and intestate inheritance, a “surviving spouse” does not include ANY of the following under Michigan law:

  • “An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other or live together as a married couple.” MCL 700.2801(2)(a).
  • “An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual.” MCL 700.2801(2)(b).
  • “An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.”  MCL 700.2801(2)(c).
  • “An individual who, at the time of the decedent’s death, is living in a bigamous relationship with another individual.”  MCL 700.2801(2)(d).
  • An individual who was willfully absent from the decedent spouse for 1 year or more before the death of the deceased person. MCL 700.2801(2)(e)(i).
  • An individual who deserted the decedent spouse for 1 year or more before the death of the deceased person. MCL 700.2801(2)(e)(ii).
  • An individual who willfully neglected or refused to provide support for the decedent spouse if required to do so by law for 1 year or more before the death of the deceased person. MCL 700.2801(2)(e)(iii).

Does a spouse that is divorcing but not yet divorced fall into any of these categories?  The Michigan Court of Appeals says no.

The appellate court believed that “MCL700.2801(e) generally stands for the proposition that when a spouse decides to informally dissolve a marriage by neglecting or deserting a partner or by withdrawing from that partner both physically and emotionally, that departing spouse loses the right to inherit from the spouse left behind.”  Slip Op. at p. 4.  Likewise, “[a] spouse who contrives an extralegal remedy for a failed marriage by desertion, neglect, or abandonment should not be afforded the rights available to those who follow the rules.”  Slip Op. at 4.  Divorce should be treated differently because it is a formal process where the court considers the parties’ income and abilities, allows both sides to have input into the process, and the judge ultimately allows a division of property in a way that both parties can live independently.  There is no question that the spousal relationship ends when the divorce is final, but what of the parties conduct leading up to that point?  In many instances, the parties are likely living separately and the love is gone?  In evaluating this matter, the Court noted the following:

  • “Here, however, the divorce was incomplete when [the husband] died. As best we can tell, no one deliberately delayed the process; sometimes, divorcees take more time than anticipated or hoped.  The point is that by filing for divorce, [the wife] sought to bring about a legal end to her marriage.  She did not intend to abandon or desert [her husband] by consigning him to a marriage with none of the fundamental attributes of a marriage.  Rather, [the wife] intended to exercise her legal right to seek a divorce decree, and to enforce the rights due her as a divorcing spouse.  Those rights potentially included spousal support, and certainly included an equitable division of marital property.  [The wife’s] invocation of legal process allowed [the husband] to protect his property rights too.”  Op. at p. 5.

A spouse participating in a divorce has a right to a fair and equitable division of the marital property.  This may also include spousal support to be awarded, which is especially appropriate in circumstances where the marriage was long, the payee spouse gave up a meaningful career to raise a family, and the separate property that was brought by each spouse into the marriage.  Michigan is a no-fault divorce state and a spouse seeking a divorce need not allege any ground other than “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”  MCL 552.6.  However, fault can be considered for the purposes of property division, child custody and spousal support.  A spouse going through divorce is entitled to his or her share of the marital estate, and it would be a great inequity for that spouse to lose the right to receive that share just because the other spouse died.

The Court of Appeals also noted that the Michigan Legislature contemplated the difference between a divorcing spouse and a divorced spouse in the Estates and Protected Individuals Code.  MCL 700.3206, the statute concerned with appointing an individual to handle funeral arrangements and disposition of the body, lists a hierarchy of persons with priority to the position that includes a “surviving spouse”.  However, for the purposes of MCL 700.3206, “surviving spouse DOES NOT include any of the following:

  • Any individual described in MCL 700.2801(2)(a) through MCL 700.2801(2)(d) (e.g. the marriage was divorced, the marriage was annulled, the individual received a separate maintenance decree, or the individual is in a bigamous marriage). MCL 700.2801(3)(a).
  • “An individual who is a party to a divorce or annulment proceeding with the decedent at the time of decedent’s death.” MCL 700.2801(3)(b).

The Michigan Legislature carved out a distinction for a divorcing spouse for purposes of being a funeral representative but specifically did not include this definition for a surviving spouse for the purposes of decedent estate probate proceedings.  This means that the idea of excluding a divorcing spouse from inheritance rights was considered and rejected by the Legislature or else they would have incorporated that definition in the statute at the same time.  This only bolsters the conclusion that the probate trial court erred in excluding Mrs. Von Greiff from having any interest in her husband’s estate.

Ultimately, The Michigan Court of Appeals ruled that a spouse’s untimely death during divorce proceedings may abate a final judgment of divorce from being granted, but merely participating in a divorce process does not disqualify the status as “surviving spouse” in probate proceedings.  Therefore, the wife was declared a surviving spouse and was entitled to her fair share of the decedent’s estate under the law.

Observers should note that the fact a spouse is going through divorce proceedings at the time of decedent’s death does not mean that any other relevant factors of disqualification should be ignored.  It is possible that a spouse initiates divorce proceedings only after the other spouse had deserted or willfully abandoned the family for years and failed to contribute even a dime during that time to support the spouse and their children.  Under those scenarios where desertion and abandonment have already occurred, the decision regarding “divorcing spouses” in probate proceedings may not apply.  The applicability of the statute is dependent on the individual facts and circumstances of the marriage.  A surviving spouse, personal representative or any heir should consult with a skilled probate lawyer to see what inheritance rights exist for the parties in their unique situation.

If you or a loved one has any questions about inheritance in Michigan or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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