Michigan law won’t let you completely cut out a surviving spouse from your estate, even if your will explicitly tries to do exactly that. If you’re creating or updating an estate plan, you need to understand these protections.
The Elective Share Right
Michigan gives surviving spouses what’s called an “elective share” of the deceased spouse’s estate. Your surviving spouse can choose to take a portion of the estate, no matter what your will says. According to Michigan Compiled Law 700.2202, the elective share amount depends on how long you were married:
- Less than 1 year: The surviving spouse receives a supplemental amount only
- 1 to 5 years: $50,000 plus 1/12 of the balance for each full year of marriage
- 5 to 10 years: $50,000 plus 50% of the balance
- 10 to 15 years: 100% of the first $50,000 plus 50% of the balance
- 15 years or more: 100% of the estate value
Why does this protection exist? Michigan recognizes marriage as an economic partnership. Both spouses contribute to the marriage in different ways. Maybe one earns the income while the other manages the household. Maybe you both work. Either way, the law assumes marriage involves mutual contribution and support.
What Assets Are Included
The elective share applies to what’s called the “augmented estate.” This includes more than just probate assets. It’s actually a broader calculation that captures property you transferred before death that might have been attempts to avoid the elective share. A Troy estate planning lawyer can help you understand which assets fall into this category. Property you own jointly with rights of survivorship gets included. So does life insurance with named beneficiaries and certain trusts. This prevents someone from simply transferring everything into joint accounts or beneficiary designations to circumvent spousal protections. The law isn’t that easy to sidestep.
When the Elective Share Doesn’t Apply
There are legitimate ways to plan around these protections. They just require proper legal documentation. The most common method is a prenuptial or postnuptial agreement where both spouses voluntarily waive their elective share rights. For these agreements to be valid, both parties must:
- Agree voluntarily
- Fully disclose their financial situations
- Have independent legal representation or knowingly waive that right
- Understand what rights they’re giving up
Without a valid agreement, attempts to disinherit a spouse will fail. The surviving spouse can file a petition with the probate court to claim their elective share within specific time limits.
Time Limits and Procedures
Your surviving spouse must act within nine months of your death or within six months after the probate estate opens, whichever comes later. Miss these deadlines, and they lose the right to claim the elective share. The process involves filing a petition with the probate court where the estate is being administered. The court then determines the value of the augmented estate and calculates the appropriate elective share amount. It’s not instantaneous, but it’s straightforward.
Impact on Estate Planning
These rules change how married couples should approach estate planning. You can’t just write a will that leaves everything to children from a previous marriage or other beneficiaries if it completely excludes your spouse. That won’t hold up. Gudeman & Associates, P.C. helps clients structure their estates in ways that respect both spousal protections and individual wishes. Sometimes this means creating trusts. Other times it involves updating beneficiary designations or drafting marital agreements. Every situation’s different.
Planning for Blended Families
Second marriages create unique challenges. So do blended families. You might want to provide for children from a previous marriage while also protecting your current spouse. How do you balance those competing interests? A Troy estate planning lawyer can help design solutions like life insurance trusts or qualified terminable interest property trusts that address both concerns. Without proper planning, your estate could face serious disputes between your spouse and other beneficiaries after you’re gone. Nobody wants that.
Taking the Next Step
Michigan’s elective share laws protect spouses, but they also require thoughtful planning if you’ve got specific estate distribution goals. Whether you’re in a first marriage, second marriage, or you’ve got other family considerations, working with legal counsel helps make sure your estate plan works as you intended while complying with state law. Don’t leave these decisions to chance or outdated documents.
