Choices of a Surviving Spouse

For Surviving Spouse In S.E. Michigan: Call 248-676-2233 to make an appointment with an attorney.

Unknown to many people is that a widow or widower may make a choice under Michigan law that will allow him or her to ignore the decedent’s will if it does not provide adequately for the economic support of the survivor. This is often called a forced share and can occur in situations of second marriages where each spouse has children from a prior marriage. The statutes also provide for a number of family situations as explained below. Pursuant to the Estates and Protected Individuals Code (EPIC) MCL 700.2202, a widow or widower may elect to take one of the following if the decedent died intestate (without a will):

(A) An intestate share of the deceased’s estate established by statute. Currently the intestate share of the spouse is defined as one of the following:

1. The entire intestate estate if no descendant or parent of the decedent survives the decedent;
2. The first $150,000 plus ½ of any balance of the intestate estate if all of the decedent’s surviving descendants are also descendants of the widow or widower.
3. The first $150,000 plus ¾ 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.
4. The first $150,000 plus ½ 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 (ie: step-children of decedent).
5. The first $150,000 plus ½ 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.
6. The first $100,000 plus ½ of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.

(B) If a widow, her dower rights. Note: Dower rights confer a life estate to the wife upon the death of her husband. Also, at common law, the widow was entitled to one third of all the property in which her husband owned at any time during the marriage. This is why a wife must sign off on the sale of property which her husband owned prior to marriage but is selling after the marriage even though her name is not on the deed. There is no comparable right for the male.

If a decedent died testate (with a will), the surviving spouse may file with the court in writing that he or she elects one of the following choices:

1. That the spouse will abide by the terms of the will.
2. That the spouse will take ½ of the sum or share that would have passed to the spouse had the testator died without a will, reduced by ½ of the value of all property received by the spouse from the decedent by any means other than testate or intestate succession (gifts or transfers during life) upon the decedent’s death.
3. If a widow, that she will take her dower rights.
4. The length of the marriage between the decedent and the surviving spouse is irrelevant. Further, the elective right given to the surviving spouse may be exercised only against the probate estate. If there is no probate estate, ie: no property and no assets, there is nothing against which the elective right can apply so the widow or widower takes nothing. In addition, non-probate transfers, such as direct payment of life insurance proceeds to a third party, distribution of assets held in a revocable trust at the decedent’s death, or title confirmed in a surviving joint tenant, are all beyond the reach of the elective right.

Notice however, the elective right is separate from and in addition to, the survivor's right to the Homestead Allowance (MCL 700.2402), Family Allowance (MCL 700.2403), and to Exempt Property (MCL 700.2404). These allowances are exempt from and have priority over all claims against the estate except for administration costs of the estate, expenses and reasonable funeral and burial costs. What this means is that if there were some assets in the decedent’s estate, the Homestead Allowance (currently about $17,000.00), Family Allowance for reasonable family maintenance costs during the period of estate administration and Exempt Property Allowance (currently about $11,000.00) are all protected from creditor’s claims against the estate.

The reasons for creating these elective shares for the decedent's widow or widower is the strong public policy of providing economic security to a surviving spouse first before designating a share for others. It should be noted that If the decedent’s assets are worth less than the dollar amount given to the spouse under the Share of Spouse (MCL 700.2102) then the spouse is the sole heir of the decedent and there are no shares distributed to others who would have been heirs of the decedent at law.

Compare Surviving Spouses at: Estate Planning for the Blended Family