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A Better Partnership
October 23, 2015

COA: Disinheriting language in a will does not deprive children of their statutory right to exempt property, says the COA

In In re Estate of Jajuga, No. 322522, the Michigan Court of Appeals held that a provision in a will that expressly disinherited the decedent’s children did not prevent the decedent’s surviving child from otherwise exercising her statutory right to exempt property under MCL 700.2404.
The decedent, Shelby Jean Jajuga, drafted a will under which her estate was to be divided between three beneficiaries.  The will also specifically directed that her children, including the petitioner, Susan Veith, were to inherit nothing from her estate.  The decedent later filed a codicil to the will in which she appointed a personal representative and divided the estate between two beneficiaries rather than three.  The remainder of the will was reaffirmed.  After the decedent’s death, Veith filed an action objecting to the final account on the basis that she was entitled to the exempt property allowance under MCL 700.2404.  The probate court agreed, stating that a testator cannot preclude a child from taking exempt property through a disinheriting provision in a will.
The Court of Appeals affirmed, holding that the disinheriting language in the decedent’s will did not eliminate Veith’s statutory right to exempt property under MCL 700.2404.  Specifically, the court examined the statutory language of MCL 700.2404 and caselaw from other jurisdictions and concluded that the statute established a statutory right to a mandatory transfer of exempt property, not merely a claim of priority.  In addition, the court rejected the argument that an adult child has an inferior right to exempt property compared to a surviving spouse, holding instead that the rights of surviving children to exempt property are equal to those of a surviving spouse.

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