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A Better Partnership
April 29, 2020

Can You Lose the Right to Inherit from Your Spouse if Your Spouse Dies while Your Divorce Case is Pending?

The Michigan Court of Appeals recently considered whether an individual can lose the right to inherit from their spouse, if the spouse dies during a pending divorce action. In re Estate of Hermann A. Von Greiff, Docket No 347254, 2020 WL 1968559 (Mich Ct App Apr 23 2020) (for publication).
After 15 years of marriage, Anne filed for divorce from Hermann. The couple separated after the divorce case was started. The divorce lawsuit moved slowly and lasted about a year. Before the final judgment of divorce was entered, Hermann died. Because of Hermann’s death, no judgment of divorce was entered, because the marriage was terminated by Hermann’s death.
Hermann’s daughter from a prior relationship petitioned the probate court to find that Anne could not inherit from Hermann’s estate as his surviving spouse. A Michigan statute, MCL 700.2801(2)(e)(i), provides that “surviving spouse” does not include “[a]n individual who ... [w]as willfully absent from the decedent spouse” for a year or more before the decedent spouse’s death. Hermann’s daughter argued that Anne had been both physically and emotionally absent from Hermann for more than a year prior to his death, and that Anne therefore did not qualify as Hermann’s surviving spouse and could not inherit from his estate. The probate court agreed with Hermann’s daughter and ruled that Anne was not a surviving spouse and could not inherit from Hermann. Anne appealed.
The Michigan Court of Appeals issued a split 2-1 decision. The majority ruled that MCL 700.2801(2)(e)(i) does not apply during a divorce proceeding; therefore, Anne was Hermann’s surviving spouse and could inherit from his estate. The dissent objected that the majority was rewriting the statute, rather than applying it as written.
What is to be learned from this case? For the time being, MCL 700.2801(2)(e)(i) does not apply, as a matter of law, if the decedent spouse and other spouse were engaged in a divorce proceeding as of the date of the decedent spouse’s death. The merit of that ruling is questionable, however. While the application of the statute to Anne’s situation did create an unjust outcome, the appellate court did not have the power to rewrite the terms of the statute. The Michigan Supreme Court may be asked to review the appellate court’s decision, so we may not have heard the last of Anne and Hermann.
If you need assistance with a probate court matter, please contact Warner attorney David Skidmore (

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