Divorce and death don’t always wait for each other. When a marriage is ending — or an incapacitated spouse can no longer act — probate and family law collide in ways that catch families, and sometimes their advisors, off guard. A few principles every Michigan family law practitioner should keep in mind:
- When divorce is in the best interest of an incapacitated ward, the conservator may seek a divorce on the ward’s behalf under MCR 2.201(E)(1)(a).
- During a divorce, one spouse cannot disinherit the other through a will — Michigan law lets a surviving spouse elect against the will and take the statutory elective share instead. A trust is different: absent fraud, one spouse may disinherit the other through a trust.
- If one spouse dies before a divorce is finalized, the enforceability of any property settlement comes into question. A final property settlement is not enforceable in a divorce that remains pending at death, but it is enforceable in a pending separate maintenance action.
- A divorce pending when one spouse dies creates a rebuttable presumption that the survivor did not intend to willfully abandon the decedent — a point that matters when determining spousal inheritance rights under intestacy.
- Under the Estates and Protected Individuals Code, a judgment of divorce revokes the gifts each spouse made to the other and to the other’s relatives in their estate-planning documents.
- A surviving ex-spouse who waived rights to an insurance policy in the divorce judgment may remain named as the beneficiary when the other ex-spouse dies. ERISA may require that the funds be paid to the survivor, but under Michigan’s law of waiver, the survivor must return them to the decedent’s estate.
Questions about where a family matter sits on the line between probate and divorce? Contact David Skidmore at dskidmore@wnj.com or 616.752.2491.
