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What a Michigan Spouse Takes No Matter What the Will Says
A Michigan will can leave a surviving spouse nothing, and the spouse can decline to accept that. The elective share is the mechanism, and it is smaller and more conditional than its reputation. Three separate allowances that sit outside the election are frequently worth more, and they do not require the spouse to elect anything at all.
Under MCL 700.2202(2), the surviving spouse of a Michigan domiciliary who dies with a will may file a written election either to abide by the will or to take one half of the sum or share that would have passed to the spouse had the decedent died intestate, reduced by one half of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession at death.
The Share Is Half, and Then It Is Reduced
The formula has two steps, and the second one is the one that surprises people. The starting point is not the intestate share but half of it. A spouse who would have taken the first $150,000 plus half the balance under intestacy starts the election at half of that figure.
The reduction then subtracts half the value of everything the spouse received from the decedent outside the will and outside intestacy. Joint accounts that passed by survivorship, life insurance naming the spouse, a retirement account with the spouse as beneficiary, and a home held as tenants by the entirety are all property derived from the decedent by other means, and half their value comes off the elective share.
A spouse who received a house and a policy that way may find the election produces nothing further, because the reduction exceeds the half-share. The election is a floor for a spouse left out entirely, not a supplement for a spouse who was provided for outside the will. Our Michigan wills page covers how a will and those non-probate transfers are coordinated.
One Choice, Made Alive, Within 63 Days
Subsection (3) limits the spouse to one choice unless the will plainly shows a contrary intent, and it requires the election to be exercised during the surviving spouse’s lifetime. A spouse who dies before electing has not elected, and the right does not pass to that spouse’s estate.
The deadline is short and it runs from probate events rather than from the death. The election must be made within 63 days after the date for presentment of claims, or within 63 days after service of the inventory on the surviving spouse, whichever is later. Both dates are set inside the administration, so a spouse who is not following the estate closely can miss the window without knowing it opened.
The statute builds in a safeguard. Notice of the right of election must be served on the decedent’s spouse, and proof of that notice filed with the court, unless the spouse files an election instead. A personal representative who is also a child from a prior marriage owes the surviving spouse that notice.
Three Allowances That Do Not Depend on Electing
Separate from the elective share, the surviving spouse takes three allowances that the statute describes as in addition to whatever passes by will, by intestacy, or by election. They are not chargeable against the spouse’s share and they have priority over creditors.
The homestead allowance under MCL 700.2402 is $15,000, adjusted for inflation under MCL 700.1210, and it is exempt from and has priority over all claims against the estate except administration costs and reasonable funeral and burial expenses. Where there is no surviving spouse, the decedent’s minor and dependent children divide it.
Exempt property under MCL 700.2404 gives the spouse household furniture, automobiles, furnishings, appliances, and personal effects up to $10,000 in value above any security interests, with a right to other estate assets to make up any shortfall. The family allowance under MCL 700.2403 provides reasonable maintenance during administration, payable to the spouse for the household, and the personal representative may set it in a lump sum of up to $18,000, adjusted, or in monthly installments for a year, under MCL 700.2405.
What Can and Cannot Be Planned Around
A will cannot remove the allowances, and it cannot remove the right to elect. What planning can do is change the arithmetic the election runs on, because property that passes to the spouse outside the will reduces the elective share by half its value. A decedent who wants the spouse provided for in a particular way, and the rest of the estate left to children from a prior marriage, is working with that reduction rather than against it.
Specifically devised property is protected in one respect. Under MCL 700.2405, if the estate is otherwise sufficient, property specifically devised shall not be used to satisfy homestead allowance or exempt property. A particular item left to a particular child is not the first thing reached to fund the spouse’s allowances where other assets can cover them.
The interaction of the election, the reduction, and the allowances is arithmetic, and it can be run on paper before a will is signed rather than in probate afterward. Call our office at (800) 525-6386 and we will walk through it with you.
Running the Arithmetic Before the Will Is Signed
A plan that leaves a spouse out has to account for the elective share, the reduction that shrinks it, and the three allowances that stand apart from it, and the result is usually not what the plan’s author expected. We prepare wills and trusts at Neumann Law Group for blended and second-marriage families as part of our Michigan estate planning practice across Northern Michigan and statewide. Call us at (800) 525-6386 or contact our office to arrange a consultation.