Pretermitted Spouse May Claim Elective Share

Vacating its earlier opinion, the Michigan Court of Appeals now holds that a surviving spouse who was left out of a will his wife executed before their marriage may claim a spousal share under the state's general spousal election provisions. In re Estate of Sprenkle-Hill(Mich. Ct. App., No. 248783, Feb. 22, 2005).

Ida Sprenkle-Hill executed a will and trust in 1999 providing that her estate would pour into the trust, which in turn would disburse specific amounts to two individuals and the remainder to her two sons. Six months before her death in 2001, Ms. Sprenkle-Hill married George Hill but never changed her will. Mr. Hill elected under Michigan's general spousal election provisions, which allow spouses to take one-half of the share that would have passed to the spouse had the testator died intestate. The probate court concluded that the general spousal election provisions were not applicable because another section of the statute governs cases in which the surviving spouse married the testator after the testator had executed her will. In such cases, the surviving spouse is limited to that part of the estate not devised to the natural children. Mr. Hill appealed, arguing that the latter section of the statute is not the exclusive vehicle through which a pretermitted spouse may claim a share of a decedent's estate.

Vacating its October 26, 2004, opinion in this matter, the Michigan Court of Appeals now reverses the probate court. The court concludes that the state's pretermitted-spouse provision and its elective-share provision do not conflict, and that therefore a pretermitted spouse may take an elective share if that would yield a larger amount. The court, adopting reasoning employed by the West Virginia Supreme Court in a similar case, writes that this resolution preserves the legislature's "intent to insulate all spouses from disinheritance while also allowing a decedent's likely testamentary intent to be honored to the extent possible." It also is consistent with the operation of the analogous provisions of the Uniform Probate Code, on which Michigan's statute is modeled, the court holds.

To download the full text of this decision in PDF format, go to: https://www.michbar.org/opinions/appeals/2005/022205/26314.pdf  
(If you do not have the free PDF reader installed on your computer, download it here.)

Did you know that the ElderLawAnswers database now contains summaries of more than 2,000 fully searchable elder law decisions dating back to 1993? To search the database, click here.