Some people who get married after having written a will sometimes forget to change their wills to account for the new spouse. In other cases, a person may simply leave his or her spouse out of the will for various reasons, intending to disinherit the spouse. Fortunately, under Michigan law, the new spouse and the disinherited spouse have several options to receive part of the deceased spouse’s estate anyway.
One way in which the law protects a spouse from being accidentally or willfully disinherited is through the elective share. If a surviving spouse is left out of a will, the surviving spouse can chose to take a part of the deceased spouse’s estate, called an elective share. The elective share is calculated according to the statute. A spouse can take one half of the property that would have passed to the spouse if the deceased spouse had died without a will, reduced by one half of the value of property the surviving spouse received from the deceased spouse through means other than a will or intestate succession.
If a deceased spouse’s will is invalidated for any reason, and there is no other will to take effect, the surviving spouse can claim an intestate share of the estate. If the deceased spouse did not have children, and has no living parents, the surviving spouse can receive the entire estate. Under the intestacy law, the surviving spouse is entitled to a combination of between $100,000 and $150,000 and between one half and three quarters of the estate depending on whether there are other heirs.
A spouse who marries the deceased spouse after the spouse made a will, and was therefore not named in the will, is known as a pretermitted spouse. A pretermitted spouse is allowed to choose between receiving an elective share, or the share he or she would have received had the deceased died without a will. However, there are some limitations as to what kind of property can be claimed by a pretermitted spouse. For example, the pretermitted spouse cannot take a part of any property that is placed in a trust for the benefit of the children of the deceased who were born after the marriage of the deceased to the pretermitted spouse, and who are not also children of the pretermitted spouse.
Until this year, 2017, widows in Michigan could have taken the equivalent of a life estate in a third of their deceased spouse’s real estate if the deceased spouse did not include the widow in his will. This was known as dower rights, but has since been abolished in Michigan.
Contact an Experienced Estate Planning Attorney
It is important to review and update your estate plan every time you experience a major change in your personal life. This is especially important if you get married or have children. While the law provides various methods in which your immediate family may receive property, if you want to ensure your estate is divided according to your wishes, you need to have a valid will in place. For a consultation to discuss your estate plan, contact Resnick Law, P.C., to talk to the skilled estate planning attorneys in Bloomfield Hills and Detroit, Michigan.
(image courtesy of Frank McKenna)
