Author: LegalEase Solutions
Statement of Facts
The Testator died and had provided for his children in the Will. The Testator did not provide for his wife in the Will. The memo discusses the rights of the wife to collect from her deceased husband’s estate. The Memo also discusses the dower rights of the wife
Whether a wife, who was not provided for in her husband’s will, is entitled to collect a share from her deceased husband’s estate?
The wife is entitled to a share of her deceased husband by way of dower rights provided by statutes and protected by Article X Section 1 of the Michigan Constitution.
Right of a widow to dower and Constitutional Protection
Michigan law regarding the right of a widow to dower is found in MCL 558.1 and provides that the widow of every deceased person, shall be entitled to dower, or the use during her natural life, of 1/3 part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof. Kopec v. Kopec, 2009 Mich. App. LEXIS 2589, 3-4 (Mich. Ct. App. 2009); MCLS § 558.1.
The Supreme Court of Michigan observed that a widow’s right to the statutory allowance is unaffected by the terms of a will. Montgomery v. Trombley, 276 Mich. 439, 442 (Mich. 1936). A wife’s interest in her husband’s estate, and particularly her right of dower, is common knowledge that it is almost presumed that testator knew of it as a matter of fact. In re McLennan’s Estate, 179 Mich. 595, 604-605 (Mich. 1914). As a presumption of law, it must be held that the testator knew it. Id.
In Eifler v. Swartz (In re Estate of Miltenberger), 275 Mich. App. 47 (Mich. Ct. App. 2007), the widow asserted her dower rights to real estate that her late husband had transferred by quit-claim deed to his daughter by a previous marriage. The deceased’s daughter objected to the dower request, arguing that the dower provisions violated the Equal Protection Clauses of the Michigan and federal constitutions because dower rights are awarded only to women. Id. at 48. Michigan statute, MCL 558.1, provides that “The widow of every deceased person, shall be entitled to dower, or the use during her natural life, of 1/3 part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof.” Id. at 48. Article 10, section 1 of the Michigan constitution, as well as MCL 700.2202(2), also provide for the right to dower. Id. at 51. Both the trial court and Michigan Court of Appeals rejected the constitutional challenge, with the appellate court noting that it “remains an unfortunate fact that there are still circumstances in which the surviving wife may be significantly disadvantaged, in a way that surviving husbands generally are not, in the absence of dower, and the Legislature may properly consider such circumstances through the enacted dower statute.” Id. At 56.
In McLennan’s Estate, the Supreme Court of Michigan held that a husband cannot cut off creditors, nor the proper charges and allowances pertaining to administration and settlement of his estate. In re McLennan’s Estate, 179 Mich. 595, 603. The Court added that the husband cannot cut off the widow’s right to dower in his lands, against her will. Id. But, apart from the exceptional limitations upon his power of disposition, he may dispose of his own property according to his pleasure. Id. A widow’s right to allowance under this statute is independent of the will, and superior to its dispositions. Id. It is an allowance ordained by the law itself, and not subject to be hindered by the exercise of the testamentary right of the husband. Id. It does not depend at all upon the nonexistence of a will. Id. The law which gives it expressly supposes there may be a will. Id. In case of a will containing no provision for the widow, her right to allowance is wholly unaffected. Miller v. Stepper, 32 Mich. 194, 202 (Mich. 1875). The law which gives it also supposes such will may contain provisions in favor of the widow, and then in substance enacts that not with standing this, she shall still have the allowance if she waives such provisions. Id. at 202-203.
In addition to the dower rights granted by MCL § 558.1, Article X, Section 1 of the Michigan Constitution provides that dower may be relinquished or conveyed as provided by law. MCL Const. Art. X, § 1.
Elective Share of Surviving Spouse.
It is conclusively presumed that testator when he made his will had in mind the right of his widow to elect to take under the statute rather than under the will. In re Povey’s Estate, 271 Mich. 627, 634 (Mich. 1935).
Under the spouse’s election statute, MCL 700.282 (now MCL § 700.2202 (2)); MSA 27.5282, the surviving spouse of a decedent domiciled in Michigan who dies testate may elect to either (1) abide by the terms of the will or (2) take a portion of the share that would have passed to the surviving spouse had the decedent died intestate. Herbach v. Herbach (In re Estate of Herbach), 230 Mich. App. 276, 290-291 (Mich. Ct. App. 1998. The surviving spouse must make the election within sixty days after the date for presentment of claims, or within sixty days after the filing of the proof of service of the inventory upon the surviving spouse, whichever is later. Id.
MCL § 700.2202 (2) provides in pertinent part:
The surviving spouse of a decedent who was domiciled in this state and who dies testate may file with the court an election in writing that the spouse elects 1 of the following:
(a) That the spouse will abide by the terms of the will.
(b) That the spouse will take 1/2 of the sum or share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.
(c) If a widow, that she will take her dower right under sections 1 to 29 of 1846 RS 66, MCL 558.1 to 558.29.
All dispositions of personal property by last will and testament shall be subject to the following limitations and restrictions: If the testator shall leave surviving him, a wife, the testamentary disposition shall be subject to the election of such wife, to take any interest that may be given to her, by the testator in his last will and testament; or in lieu thereof, to take the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate, until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her under the statute of distributions, had the testator died intestate. In re Dodge Testamentary Trust, 121 Mich. App. 527, 558 (Mich. Ct. App. 1982). In case no provision is made for her in said will, she shall be entitled to the election aforesaid. Detroit Trust Co. v. Stoepel, 312 Mich. 172, 177 (Mich. 1945)
The wife of a deceased person, whose name is not mentioned in her deceased husband’s will, is still entitled to her share. MCL § 558.1, MCL § 700.2202 (2) and Article X § 1 of the Michigan Constitution provide for the protection of a surviving spouse/widow and ensures that she gets a fair share at least in the form of dower.