Legal Question in Wills and Trusts in Michigan

Contesting Spousal Election

I am aware that the spouse has a right to elect against the will. Does this apply in all circumstances? There was a will, but we believe that we CAN prove that the intent was to provide for her outside the will. The verbage said that ''there are no provisions for my spouse, (her) in my will, except paragraph IV'', where she was given a ''life estate'' She was mentioned in the will so she was not 'left out' of the will. Also, they had both re-written their wills identically, the same day together, after he found out he was dying from cancer. Hers also stated, ''there are no provisions for my spouse, (him) in my will''. The will leaves everything else to us 4 children. She is charging everything to the estate. Do we have any chance of fighting this? They were only married 7 years and he was 78. Please advise.


Asked on 7/08/03, 9:59 am

1 Answer from Attorneys
Patricia Prince Patricia Gormely Prince, P.C.

Re: Contesting Spousal Election

The spouse's right to elect against a deceased spouse's Will does apply in all circumstances, unless the spouse waived his or her right of election in a written document signed by the spouse after fair disclosure. Keep in mind, however, that the amount the spouse can receive if she elects against the Will is reduced by 1/2 of the value of all assets she received outside of the Will as a result of the deceased spouse's death.

The surviving spouse also has a right to receive a homestead allowance ($17,000.00), exempt property ($11,000.00) and family allowance (up to $20,000.00 without the need for Court approval).

The homestead allowance and exempt property are in addition to what is left for the surviving spouse under the Will, unless the Will says otherwise. It does not appear that the Will in your case says otherwise.

The family allowance must be reasonable. Therefore, if you believe that the amount being paid to the surviving spouse as a family allowance is unreasonable, you do have a right to object in Court.

This is the type of matter that is best handled by an attorney. Our firm handles many of these types of matters, feel free to contact us if we can be of further assistance.

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Answered on 7/10/03, 4:46 pm


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