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socrateaser
socrateaser, Lawyer
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I require a definition of the Dowager Act in Michigan, if it

Customer Question

I require a definition of the Dowager Act in Michigan, if it still exists and what the implications are if one signs away Dowager rights.
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.

Are you talking about property/inheritance rights of a surviving spouse?

Customer: replied 1 year ago.
Relist: Incomplete answer.
I need my original question answered but not with another question!
Customer: replied 1 year ago.

I am talking about property rights of a surviving spouse.

Expert:  socrateaser replied 1 year ago.

Thank you for clarifying the issue.

A widow or widower may make a choice under Michigan law that will allow him or her to ignore the decedent’s will if it does not provide adequately for the financial support of the survivor. This is sometimes called a "forced share" and can occur in situations of second marriages where each spouse has children from a prior marriage.

 

Also, pursuant to the Estates and Protected Individuals Code (EPIC) MCL(NNN) NNN-NNNN a widow or widower may elect to take one of the following if the decedent died intestate(without a will):

 

(a) An intestate share of the deceased’s estate established by statute. Currently the intestate share of the spouse is defined as one of the following:

(1) The entire intestate estate if no descendant or parent of the decedent survives the decedent;

(2) The first $150,000 plus ½ of any balance of the intestate estate if all of the decedent’s surviving descendants are also descendants of the widow or widower.

(3) The first $150,000 plus ¾ of any balance of the intestate estate if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.

(4) The first $150,000 plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent (i.e.: step-children of decedent).

(5) The first $150,000 plus ½ of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.

(6) The first $100,000 plus ½ of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.

 

 

(b) If a widow, her dower rights. Note: Dower rights confer a life estate to the wife upon the death of her husband. Also, at common law, the widow was entitled to one third of all the property in which her husband owned at any time during the marriage -- which is why a wife must consent in writing to the sale of property which her husband owned prior to marriage but is selling after the marriage even though her name is XXXXX XXXXX the deed. There is no comparable right for a husband in Michigan (which is probably unconstitutional, but remains undetermined by the courts).

 

If a decedent died testate (with a will), the surviving spouse may file with the court in writing that he or she elects one of the following choices:

 

(1) That the spouse will abide by the terms of the will.

(2) That the spouse will take ½ of the sum or share that would have passed to the spouse had the testator died without a will, reduced by ½ of the value of all property received by the spouse from the decedent by any means other than testate or intestate succession (gifts or transfers during life) upon the decedent’s death.

(3) If a widow, that she will take her dower rights.

 

The length of the marriage between the decedent and the surviving spouse is irrelevant. The elective right given to the surviving spouse may be exercised only against the probate estate. If there is no probate estate (no property and no assets), there is nothing against which the elective right can apply so the widow or widower takes nothing. Non-probate transfers, such as direct payment of life insurance proceeds to a third party, distribution of assets held in a revocable trust at the decedent’s death, or title confirmed in a surviving joint tenant, are all beyond the reach of the elective right.

 

However, the elective right is separate from and in addition to the survivor's right to the Homestead Allowance (MCL(NNN) NNN-NNNN, Family Allowance (MCL(NNN) NNN-NNNN, and to Exempt Property (MCL(NNN) NNN-NNNN. These allowances are exempt from and have priority over all claims against the estate except for administration costs of the estate, expenses and reasonable funeral and burial costs. What this means is that if there were some assets in the decedent’s estate, the Homestead Allowance (currently about $17,000.00), Family Allowance for reasonable family maintenance costs during the period of estate administration and Exempt Property Allowance (currently about $11,000.00) are all protected from creditor’s claims against the estate.

 

The reasons for creating these elective shares for the decedent's widow or widower is the strong public policy of providing economic security to a surviving spouse first before designating a share for others. Note that If the decedent’s assets are worth less than the dollar amount given to the spouse under the Share of Spouse (MCL(NNN) NNN-NNNN then the spouse is the sole heir of the decedent and there are no shares distributed to others who would have been heirs of the decedent at law.

 

Concerning your secondary question re the implication of waiving dower rights, “The rights of the surviving spouse to an estate or to dower under sections 1 to 29 of chapter 66 of the Revised Statutes of 1846, as amended, homestead allowance, election, exempt property, and family allowance or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.” Matter of Benker's Estate, 416 Mich. 681 331, N.W.2d 193 (1982).

In plain English, if the surviving spouse voluntarily signed an agreement with full understanding of the rights you were relinquishing concerning dower rights, then that agreement would be valid and enforceable against the surviving spouse in a Michigan court. However, may such waiver agreements are found unenforceable, because they frequently are the result of the undue influence or deceit of the other party. Courts are extremely suspicious of comprehensive waivers made in contemplation of marriage -- unless each party is represented by separate legal counsel at the time that the waiver is signed.

 

These waiver issues are frequently the subject of intense litigation, where a decedent's estate is large.

Please let me know if I can be of further assistance.

Customer: replied 1 year ago.
Relist: Incomplete answer.
I need my original question answered but not with another question!
Expert:  socrateaser replied 1 year ago.
Hello again,

Perhaps there is some miscommunication. I have answered you, by reciting the law in its entirety and providing you with a direct answer to questions as asked. Your response suggests that you are unable to read, or unaware of, my answer. So, I shall repeat it here, again for your convenience, as follows:

 

A widow or widower may make a choice under Michigan law that will allow him or her to ignore the decedent’s will if it does not provide adequately for the financial support of the survivor. This is sometimes called a "forced share" and can occur in situations of second marriages where each spouse has children from a prior marriage.

 

Also, pursuant to the Estates and Protected Individuals Code (EPIC) MCL 700.2202, a widow or widower may elect to take one of the following if the decedent died intestate(without a will):

 

(a) An intestate share of the deceased’s estate established by statute. Currently the intestate share of the spouse is defined as one of the following:

(1) The entire intestate estate if no descendant or parent of the decedent survives the decedent;

(2) The first $150,000 plus ½ of any balance of the intestate estate if all of the decedent’s surviving descendants are also descendants of the widow or widower.

(3) The first $150,000 plus ¾ of any balance of the intestate estate if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.

(4) The first $150,000 plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent (i.e.: step-children of decedent).

(5) The first $150,000 plus ½ of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.

(6) The first $100,000 plus ½ of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.

 

 

(b) If a widow, her dower rights. Note: Dower rights confer a life estate to the wife upon the death of her husband. Also, at common law, the widow was entitled to one third of all the property in which her husband owned at any time during the marriage -- which is why a wife must consent in writing to the sale of property which her husband owned prior to marriage but is selling after the marriage even though her name is not on the deed. There is no comparable right for a husband in Michigan (which is probably unconstitutional, but remains undetermined by the courts).

 

If a decedent died testate (with a will), the surviving spouse may file with the court in writing that he or she elects one of the following choices:

 

(1) That the spouse will abide by the terms of the will.

(2) That the spouse will take ½ of the sum or share that would have passed to the spouse had the testator died without a will, reduced by ½ of the value of all property received by the spouse from the decedent by any means other than testate or intestate succession (gifts or transfers during life) upon the decedent’s death.

(3) If a widow, that she will take her dower rights.

 

The length of the marriage between the decedent and the surviving spouse is irrelevant. The elective right given to the surviving spouse may be exercised only against the probate estate. If there is no probate estate (no property and no assets), there is nothing against which the elective right can apply so the widow or widower takes nothing. Non-probate transfers, such as direct payment of life insurance proceeds to a third party, distribution of assets held in a revocable trust at the decedent’s death, or title confirmed in a surviving joint tenant, are all beyond the reach of the elective right.

 

However, the elective right is separate from and in addition to the survivor's right to the Homestead Allowance (MCL 700.2402), Family Allowance (MCL 700.2403), and to Exempt Property (MCL 700.2404). These allowances are exempt from and have priority over all claims against the estate except for administration costs of the estate, expenses and reasonable funeral and burial costs. What this means is that if there were some assets in the decedent’s estate, the Homestead Allowance (currently about $17,000.00), Family Allowance for reasonable family maintenance costs during the period of estate administration and Exempt Property Allowance (currently about $11,000.00) are all protected from creditor’s claims against the estate.

 

The reasons for creating these elective shares for the decedent's widow or widower is the strong public policy of providing economic security to a surviving spouse first before designating a share for others. Note that If the decedent’s assets are worth less than the dollar amount given to the spouse under the Share of Spouse (MCL 700.2102) then the spouse is the sole heir of the decedent and there are no shares distributed to others who would have been heirs of the decedent at law.

 

Concerning your secondary question re the implication of waiving dower rights, “The rights of the surviving spouse to an estate or to dower under sections 1 to 29 of chapter 66 of the Revised Statutes of 1846, as amended, homestead allowance, election, exempt property, and family allowance or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.” Matter of Benker's Estate, 416 Mich. 681 331, N.W.2d 193 (1982).

In plain English, if the surviving spouse voluntarily signed an agreement with full understanding of the rights you were relinquishing concerning dower rights, then that agreement would be valid and enforceable against the surviving spouse in a Michigan court. However, may such waiver agreements are found unenforceable, because they frequently are the result of the undue influence or deceit of the other party. Courts are extremely suspicious of comprehensive waivers made in contemplation of marriage -- unless each party is represented by separate legal counsel at the time that the waiver is signed.

 

These waiver issues are frequently the subject of intense litigation, where a decedent's estate is large.

Please let me know if I can be of further assistance.

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