Surviving Spouse Protections in Probate
When a loved one passes away, the surviving spouse often faces a series of complex emotional and financial hurdles. Probate, the legal process of settling an estate, can be particularly daunting, especially when it comes to protecting the surviving spouse's interests. The experienced probate attorneys of Thompson Legal understand the various protections available to spouses, and can help ensure that the surviving spouse's needs are met and their security is preserved.
Please note that this post is not exhaustive, and every situation is unique. In the event that you have legal questions about probate, it’s advisable to speak with a licensed attorney. Contact Thompson Legal to speak with a Michigan Probate Attorney today.
Key Protections for Surviving Spouses
Many states, including Michigan, offer surviving spouses a series of exemptions and allowances. These exemptions and allowances, found in the Estates and Protected Individuals Code (EPIC), are a statutory right to a portion of their deceased spouse's estate. These rights apply regardless of the terms of the will. This ensures that the surviving spouse receives a minimum amount of financial support, even if there is an existing will that disinherits them or provides for a significantly smaller share.
The common exemptions and allowances that you may encounter during probate administration are the Homestead Allowance, the Family Allowance, and the Personal Property Exemption.
Homestead Allowance
In Michigan, the homestead allowance is a specific amount of money that is exempt from creditors' claims and may be used to protect the surviving spouse or minor children of a deceased person. The homestead allowance is in addition to any share of the estate that passes to the surviving spouse or minor or dependent children through a will, intestate succession, or the elective share. This allowance is designed to provide a basic level of financial security during a difficult time.
The primary claimant of the homestead allowance is the surviving spouse of the deceased. If there is no surviving spouse, the allowance can be divided equally among the decedent's minor (under age 18) and dependent adult children. The homestead allowance has priority over other claims against the estate, except for administration costs, expenses, and reasonable funeral and burial expenses. This generally means that a surviving spouse will find the most protection with the homestead allowance.
The total amount of the homestead exemption that can be applied will depend on the year in which the decedent passed away. As of 2024, the homestead allowance has increased to $28,000, and grows annually with the cost of living. Further, it is important to note that the personal representative is not required to receive court approval before apply the homestead allowance.
Family Allowance
Similarly, the family allowance is a monetary payment designed to provide support for the decedent's family during the administration of the estate. This allowance is intended to help families meet their immediate financial needs while the estate is being settled. A family allowance is typically payable to a decedent’s surviving spouse, minor children, or dependent children who are eligible and relied on the decedent’s support.
The family allowance is in addition to any share of the estate that passes to the surviving spouse or children through a will, intestate succession, or the elective share. The family allowance has priority over all claims against the estate, except for administration costs, expenses, and the homestead allowance.
The statute does not specify a maximum dollar amount for the family allowance. However, the personal representative may grant up to $18,000 (adjusted to $34,000 in 2024) as a lump sum or periodic payments. Additional amounts may also be authorized by the probate court, however the family allowance may not continue for more than a year unless estate assets permit.
The probate court has discretion in determining the amount of the family allowance to be awarded in probate cases. Factors that the probate court may be considered include:
Needs of the surviving spouse and children: The court will consider the financial needs of the surviving spouse and children.
Value of the estate: The size of the estate is a relevant factor in determining the amount of the allowance.
Other resources available: The court may consider other resources available to the surviving spouse and children, such as life insurance proceeds or a living trust.
Personal Property Exemption
The exempt property allowance is a specific amount of money or property that is exempt from creditors' claims and may be used to protect the surviving spouse or children of a deceased person. This allowance is designed to provide essential items for daily living during a difficult time. The decedent's surviving spouse is generally entitled to the exempt property allowance, as well as any children of the decedent, regardless of their age or dependency status.
The exempt property allowance typically includes:
Household furniture
Automobiles
Furnishings
Appliances
Personal effects
The exempt property allowance has priority over all claims against the estate, except for administration costs, expenses, the homestead allowance, and the family allowance. This means that the allowance for exempt property is the least effective discussed.
The current exempt property allowance is $19,000 (as of 2024). If there is insufficient exempt property, the spouse or children may take other assets of the estate to make up the value. The surviving spouse, fiduciaries, or children may select the property to be included in the exempt property allowance. If they fail to do so, the personal representative may make the selections. The decedent may also choose to exclude one or more children from receiving the exempt property allowance by stating so in their will.
Surviving Spouse Right to Elect Against Will
In Michigan, the right to elective share allows a surviving spouse to take a portion of their deceased spouse's estate, even if the will provides otherwise. This right is intended to protect the surviving spouse and ensure that they receive a fair share of the estate, and are not burdened with ongoing family expenses of the decedent. A surviving spouse has three options when it comes to the elective share:
Abide by the Will: The spouse can choose to follow the terms of the deceased spouse's will.
Elective Statutory Share: The spouse can take a specific portion of the estate, as defined by Michigan law. This portion is calculated based on the value of the estate and any property the spouse already received from the deceased.
Dower Rights (Prior to 2017): This option was available for surviving wives only and allowed them to claim a one-third interest in real property owned by the deceased husband during the marriage. However, this option was abolished for decedents who died on or after April 6, 2017.
If a surviving spouse chooses the elective statutory share, the amount they receive will be reduced by half of any property they already received from the deceased spouse during their lifetime. This includes transfers made within two years of the deceased spouse's death, transfers subject to a retained power, and transfers made through joint ownership or insurance beneficiary designations.
The personal representative must notify the surviving spouse of their right to elect within 28 days of their appointment. Then the surviving spouse must make their election within 63 days after the presentation of claims or within 63 days after service of the inventory upon the surviving spouse, whichever is later. If a surviving spouse fails to make an election within the statutory time frame, it is presumed that they have elected to abide by the terms of the will.
Marital Property Agreements
If a couple has a valid marital property agreement, this agreement will generally govern the distribution of their property upon the death of one spouse. The agreement can specify how specific assets will be divided, who will inherit them, and whether the surviving spouse will have any rights to the deceased spouse's property. For example, the agreement might state that the surviving spouse will be entitled to a specific amount of life insurance on the passing of her spouse.
Tips for Protecting Your Interests
To best protect your interests, it is always advisable to create a comprehensive estate plan, including a will. A-well drafted will can help ensure that your wishes are carried out and that your surviving spouse is adequately provided for. As well as creating a will, you should also consider creating a revocable living trust. A living trust can help avoid probate, which can be a lengthy process. It can also provide greater flexibility in managing assets and protecting the interests of the surviving spouse.
Conclusion
Navigating the complexities of probate can be overwhelming for a surviving spouse. However, understanding the various protections available can provide peace of mind and ensure that the surviving spouse's needs are met. The experienced probate attorneys at Thompson Legal are dedicated to helping surviving spouses navigate the probate process. We can assist with understanding your rights, protecting your interests, and ensuring a smooth and efficient estate settlement. If you have questions regarding your interest, contact Thompson Legal to speak with an experienced probate attorney about your case.
This article is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a probate and estate planning attorney, please Contact Thompson Legal at (734) 743-1646 to schedule a consultation.
Relevant Probate Forms
SELECTION OF HOMESTEAD ALLOWANCE AND EXEMPT PROPERTY, PC 582
NOTICE TO SPOUSE OF RIGHTS OF ELECTION AND ALLOWANCES, PROOF OF SERVICE, AND ELECTION, PC 581
