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PROBATE 13: Are you a surviving spouse if you were “willfully absent” from decedent in the years leading up to death?

The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., governs the distribution of an individual’s property at death. EPIC grants a decedent’s surviving spouse certain rights. However, not every spouse can rely on these rights. For example, a valid divorce or annulment severs such reliance. Although EPIC anticipates a number of other circumstances, the one at issue in this case is whether the surviving spouse was “willfully absent” from the decedent for more than one year before his death and is therefore ineligible under MCL 700.2801(2)(e)(i) to exercise her rights under EPIC.

In this case, the decedent had six children from a previous marriage when he married appellee. Decedent and appellee went on to have four children together, bringing decedent’s total number of children to 10. Several years after their wedding, they bought a house in Saginaw. However, although remaining in Saginaw, appellee moved out and established a separate residence. She subsequently petitioned decedent for financial assistance, and decedent consented to a support order that provided assistance for appellee and for their children. But the two continued to live apart. There is no indication that they ever lived under the same roof again.

Decades later, decedent and appellee joined together as plaintiffs and sued decedent’s employer to reinstate appellee’s health insurance coverage in accordance with his retiree medical benefits. During the proceedings, it was stated that appellee was in poor health and that if she were to die, the loss to decedent would be irreparable. Decedent made it clear that appellee was still his wife and that they had an ongoing relationship.

Two years later, decedent died intestate. Decedent and appellee had never filed for divorce nor had they otherwise formally separated. In the eyes of the law, they very much remained married until the time of decedent’s passing. As testament to this fact, appellee was listed as decedent’s surviving spouse on his death certificate.

Following his death, appellee and decedent’s children proceeded to sort through his estate informally. Yet all was not well with the related but distinct families that decedent had fathered. One of decedent’s children (daughter B) from his first marriage, petitioned the probate court to open formal proceedings and to be appointed as the estate’s personal representative.  Eight months after decedent’s death and with no other interested party objecting, the probate court granted the petition.

Daughter B asked the probate court to determine whether appellee was a surviving spouse in accordance with EPIC.  She argued, in part, that appellee was not a surviving spouse under MCL 700.2801(2)(e)(i) because she was “willfully absent” from decedent in the years leading up to his death. If proved, because decedent died intestate, appellee would not be an heir for the purposes of inheritance. She would not be entitled to a share of decedent’s estate.

The probate court held a hearing on the motion, and decided that motion in appellee’s favor in a written opinion, ruling that appellee was decedent’s surviving spouse.

Neither party disagrees that appellee was physically absent from the martial home in the years that followed, intentionally so, and neither party disputes that decedent and appellee remained legally married until decedent’s death.  Appellee is even listed as the surviving spouse on decedent’s death certificate, and she is the named beneficiary of his life insurance policy. Therefore, the question is whether, given the totality of the circumstances, appellee intended to be physically and emotionally absent from decedent, resulting in a practical end to their marriage?

Unfortunately for Daughter B, the record in this case is sparse. Before the probate court, Daughter B asserted that appellee was not a surviving spouse and moved for a declaration of her status as a nonsurviving spouse pursuant to EPIC. But her claim rested solely on the allegation that they did not cohabitate for over 36 years, and she provided nothing more in support of her claim than evidence of this fact.

While physical separation is necessary for a finding that a spouse is not a surviving spouse for the purposes of EPIC, physical separation alone is insufficient. Because Daughter B did not refute the evidence tending to show the enduring emotional connections between them, her claim necessarily fails.  The probate court recognized that the couple had not resided together for many years but found that the couple had chosen a separated lifestyle rather than a complete end to their marriage.

Aldrich Legal Services represents clients in a wide range of probate litigation matters. Given the emotional nature of these disputes and their financial impact on all involved, it is critical that anyone involved in such a dispute retain highly qualified legal counsel.

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