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How Michigan Divides an Estate When the Children Are Not Shared
Michigan’s default rules for an estate were written with a first marriage in mind, and they change their arithmetic the moment a family includes children who belong to only one spouse. The changes are not subtle. The same estate, with the same surviving spouse, divides differently depending on whose children the decedent’s children are, and a stepchild who was never adopted is not in the calculation at all.
MCL 700.2102 sets the surviving spouse’s intestate share in six scenarios, and four of them turn on whether the decedent’s descendants are also the spouse’s. The base figures in the section are $150,000 and $100,000, each plus a fraction of the balance, and they are adjusted for inflation under MCL 700.1210, so the current-year amounts are higher than the text.
The Spouse’s Share Shrinks as the Children Diverge
Where every surviving descendant of the decedent is also a descendant of the surviving spouse, and the spouse has no other descendants, the spouse takes the first $150,000, adjusted, plus half of the balance. The same figure applies where the descendants are all shared but the spouse has descendants of their own who are not the decedent’s.
Where one or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse, the spouse takes the first $150,000, adjusted, plus half of the balance. Where none of the decedent’s surviving descendants are descendants of the surviving spouse, the first figure drops to $100,000, adjusted, plus half of the balance.
The balance in each case passes under MCL 700.2103 to the decedent’s descendants by representation. The decedent’s children from a prior relationship take that share equally with any shared children. The spouse’s children from a prior relationship take nothing under this section, because they are not the decedent’s descendants.
A Stepchild Is Not a Descendant
Section 2103 passes the non-spousal share to the decedent’s descendants, and the word is doing precise work. A child the decedent raised from infancy, supported through college, and referred to as a son or daughter is not a descendant of the decedent unless the decedent adopted that child. Without an adoption, the stepchild is outside intestate succession entirely.
The adoption code confirms the point from the other direction. Under MCL 710.60, after an order of adoption there is no distinction between the rights of natural progeny and adopted persons, and the adopted person becomes an heir at law of the adopting parent. The order is what creates the status, and nothing short of it does.
A blended family that intends stepchildren to inherit has two routes, and only two. One is adoption, including adult adoption. The other is a will or trust that names them, because a document can give a stepchild what the intestacy statute will not. Our Michigan wills page covers what a will can direct that the default rules cannot.
A Will Signed Before the Marriage Is Partly Protected
A common blended-family fact pattern is a will signed during a first marriage, or between marriages, followed by a remarriage with no new will. Under MCL 700.2301, a spouse who married the testator after the will was executed is entitled to an intestate share of the estate, which would ordinarily override much of the old will.
The section carves out what the omitted spouse may not reach. The share is calculated only against the portion of the estate that is not devised to or in trust for a child of the testator born before the marriage who is not the surviving spouse’s child, or to a descendant of such a child. Property left to the first family’s children stays with them.
That carve-out is the statute’s own recognition of the blended-family problem. A parent who left everything to the children of a first marriage, then remarried without updating the will, has not exposed those devises to the new spouse’s omitted-spouse claim. The claim reaches whatever else is in the estate, subject to exceptions in subsection (2) that turn on the circumstances of the will and the marriage.
A Child Born After the Will Is Handled Separately
The mirror provision, MCL 700.2302, addresses a child born or adopted after the will was signed and not provided for in it. Where the testator had no child living when the will was executed, the omitted child takes what they would have received under intestacy, unless the will left all or substantially all of the estate to the omitted child’s other parent, who survives and takes under the will.
Where the testator did have children living and devised property to them, the omitted child’s share is limited to those devises. The child takes the share they would have received had the testator included all omitted children with the children who were provided for and given each an equal share, and the existing children’s devises abate ratably to make room.
In a blended family that provision decides whether a child of the second marriage shares in what was left to children of the first, and the answer depends on whether the will devised to those earlier children at all. It is a question a will can settle in a sentence, and one that intestacy and the omitted-child rules settle in ways the parent may not have chosen. We talk these questions through with you. Call us at (800) 525-6386.
Before the Second Marriage Changes the Plan
Every one of these provisions is a default that a signed document displaces, which is why a blended family’s plan is less about choosing a strategy than about not leaving the choice to the statute. At Neumann Law Group, we prepare wills and trusts for second-marriage and blended families as part of our Michigan estate planning practice, alongside the Michigan trust administration that follows. If you would like us to look at your situation, call (800) 525-6386 or contact us through our website.