SPOUSAL ELECTION AND RIGHTS OF THE OMITTED CHILD

When a resident of Michigan dies, the surviving spouse, children and dependents are entitled to receive certain allowances and exempt property. The rights are explained in the article entitled: The Basic Rights Of The Surviving Spouse And Children. Those rights apply to every estate of an individual who dies a resident of Michigan. These or similar rights are found in the other states as well.

In some decedent estates, the surviving spouses may have additional rights. One of those rights is named the “spousal election.” This right is available when a Michigan resident dies and leaves a will and estate to be probated in Michigan. MCL 700.2202.

In this situation, the surviving spouse has three choices in making a “spousal election.” The first choice or election is to abide by the will. That is, the spouse agrees to take whatever gifts – called devises – are given in the will.

Under the second choice, the surviving spouse elects to take ½ of the intestate share he or she would be entitled to if decedent died without a will. But this share is reduced by ½ of the value of all property received by the spouse from decedent by all other means except transfers upon decedent’s death occurring through a will or by intestate succession.

There are several types of transfers that will reduce this ½ share including property received as a gift from the decedent that was subject to federal gift taxes and made within two years of death. Presently, that would be an asset valued at $60,000 or more. It also includes property transferred at death through joint ownership, insurance beneficiary, and similar means.

The third choice in the spousal election where the deceased spouse has a valid will is for the widow to elect to take her dower right. Dower entitles only the widow to use, during her natural lifetime, 1/3 of all the lands that her husband owned and that could be inherited by someone upon his death. This is very rarely ever elected.

A surviving widow has another right. It arises only if the husband dies without having a valid will. That is, he dies intestate. In this instance, the widow can elect to take her intestate share or her dower rights. The election is not available to a surviving husband.

Sometimes a person makes a will, marries years later and never changes the will to make gifts to this spouse. Upon the person’s death, the surviving spouse can receive an intestate share. This share is to be not less than the value of the share the surviving spouse would have received had the person died without a will. But there is an important exception that could result in there being no intestate share. It occurs when the person leaves the estate to his or her children and descendants who are not children and descendants of the surviving spouse. MCL 700.2301

This decedent’s estate that is used to calculate the intestate share to be given to the surviving spouse is reduced by any amounts given to a child or other descendant if born before this last marriage and who is not a child of this surviving spouse. In making their will, most persons devise their estates to their children and grandchildren. Thus, in this second marriage situation, there would be no estate available for an intestate share.

However, the surviving spouse can still receive assets of the estate by taking the spousal elective share. This is the share that was described in the beginning of the article. In each instance, a careful calculation must be made by the surviving spouse to determine the best choice.

This right can be denied or barred if the testator did one or more acts to prevent it. These could include a statement in the will that it is to be effective even if testator later marries; or by testator providing transfers of assets outside of the will; or by evidence that the will was made in contemplation of this particular marriage.

The last special right to be noted is that of the child who has been omitted from the will of a parent. If a child is born or adopted after a parent makes a will, usually that child is entitled to a share of the deceased parent’s estate. That share is either an intestate share, if the parent had no other living child, or a share equal to the amount given in the will to other children. MCL 700.2302

However, this omitted child may receive no share in three instances. First, if it is shown that the child was intentionally omitted. Second, the parent provided for the child by other transfers and it is shown that the parent intended the other transfers to be substitutes. The third situation occurs where the parent gives substantially all of the estate to the other parent of the omitted child.

A parent may decide to leave none of the estate to a living child. The child would then receive nothing. But if the parent when making the will believed a child was deceased when in fact he or she was not, and made no provision in the will, that child would be entitled to inherit from the parent. This omitted child has a right to share in the estate as an omitted after-born or after-adopted child.

More information on this topic can be found at the Calhoun County Courts Probate Notes site.

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