Understanding a Surviving Spouse’s Right to Take Against a Will in Genesee County
Key Takeaways: A Flint widow may often elect to take against her late husband’s will, but the right is narrower than it sounds. Under MCL 700.2202(2)(a)-(b), a surviving spouse of a testate decedent domiciled in Michigan may elect to abide by the will or take one-half of her intestate share. That elective amount is reduced by one-half the value of property derived from the decedent outside testate or intestate succession, including jointly held property, life insurance proceeds, and gifts made within two years of death to the extent those gifts are subject to federal gift or estate taxes. The election must be filed within 63 days after the date for presentment of claims or after service of the inventory, whichever is later. The right may be lost if the spouse is disqualified under MCL 700.2801(2)(e) for desertion, willful absence, or refusal to provide support, or if waived by prenuptial or postnuptial agreement. A widow should complete a full probate and non-probate accounting before filing.
A Flint widow may be able to reject her late husband’s will and instead claim one-half of what she would have received had he died without one. Michigan law gives the surviving spouse of a testate decedent domiciled in this state the option to file a written election with the probate court to either abide by the will or take against it under MCL 700.2202(2)(a)-(b). That elective share is generally reduced by half the value of property the spouse receives from the decedent outside testate or intestate succession.
If your spouse’s will left you far less than expected, timing matters. The team at CF Legal helps surviving spouses in Flint and across Genesee County evaluate whether an election makes financial sense before the statutory window closes. Call 810-232-1112 or contact us now to discuss your situation.
How the Michigan Elective Share MCL 700.2202 Actually Works
The statute gives a surviving spouse a choice, not an automatic windfall. Under MCL 700.2202(2)(a)-(b), the surviving spouse of a testate decedent domiciled in Michigan may file a written election in probate court to abide by the will’s terms or take one-half of the share that would have passed had the testator died intestate. The election is a formal filing, not an informal objection.
That one-half figure is subject to reduction. MCL 700.2202(2)(b) directs that the elective amount be reduced by one-half of all property derived by the spouse from the decedent by means other than testate or intestate succession. A widow who already received substantial non-probate assets may find the arithmetic leaves her with far less than anticipated, sometimes less than the will provided.
Michigan is a separate-property state, which is why this statute exists. Unlike community property jurisdictions, Michigan does not give a spouse automatic co-ownership of assets titled in the decedent’s name alone. The Michigan Bar Journal’s discussion of surviving spouse property protection describes the elective share as the right "to take a portion of the decedent’s estate even if disinherited in the will."
What Counts as "Property Derived From the Decedent"
The definition is broad. MCL 700.2202(7)(a)-(c) sweeps in categories beyond the probate estate:
- Transfers made within two years before the decedent’s death to the extent that the transfer is subject to federal gift or estate taxes
- Transfers made before the date of death subject to a power retained by the decedent that would make the property, or a portion of the property, subject to federal estate tax
- Assets passing by joint ownership with survivorship rights, tenancy by the entireties, or life insurance and beneficiary designations
The election analysis is essentially an accounting exercise. A widow who was the joint owner of the marital home, named beneficiary on life insurance, and payable-on-death beneficiary of bank accounts may already hold most of the couple’s wealth. Courts consider the valuation of these items, and disputes over value are fact-dependent.
The 63-Day Deadline That Decides Everything
The right of election must be exercised within a strict statutory window. Under MCL 700.2202(3), the spouse must file within 63 days after the date for presentment of claims or within 63 days after service of the inventory, whichever is later. The spouse gets only one choice unless the will shows contrary intent.
Deadlines in probate are treated seriously. MCL 700.2203 addresses the consequences of failure to timely elect and limited circumstances for relief, which courts interpret narrowly. You can review the full elective share statutes for surrounding provisions.
\u{1F4A1} Pro Tip: Calendar both trigger dates when you receive the inventory. Because the statute runs from the later of two events, measuring from the earlier date is safer than assuming the later one controls.
Notice Obligations of the Personal Representative
The personal representative must give the spouse notice of the right of election. MCL 700.2202(4) contemplates service on the spouse using the procedure referenced in MCL 700.3705(5), with proof filed with the court. A spouse’s filing may make notice procedure unnecessary.
Do not assume silence means the clock has not started. If you have received estate paperwork, an experienced Flint estate lawyer can help determine which document triggered the period. Fiduciaries who fail to serve required notice may face accounting scrutiny, though that is separate from whether the election was timely.
When the Decedent Died Without a Will
The one-half formula does not apply to intestate estates. MCL 700.2202(1)(a)-(b) provides that a widow of an intestate decedent elects between her intestate share under MCL 700.2102 or, for deaths before dower’s 2017 abolition, statutory dower. This is a different election with different calculations.
Understanding baseline intestate distribution helps frame the analysis. Our discussion of who inherits without a will walks through how Michigan distributes property among spouses, children, and parents. Because the elective share is measured against the intestate share, intestacy rules matter even when a will exists.
| Scenario | Governing Provision | What the Spouse May Elect |
|---|---|---|
| Decedent died with a will, domiciled in Michigan | MCL 700.2202(2)(a)-(b) | Abide by the will, or take 1/2 of the intestate share, reduced by 1/2 of property derived from the decedent |
| Decedent died intestate | MCL 700.2202(1)(a)-(b) | Intestate share under MCL 700.2102, or dower for deaths before dower’s 2017 abolition |
| Decedent domiciled outside Michigan | MCL 700.2202(6) | Governed by the law of the decedent’s domicile |
| Spouse legally incapacitated | MCL 700.2202(5) | Election only by court order after a support finding |
Circumstances That Can Eliminate the Right Entirely
Not everyone married at the time of death qualifies as a "surviving spouse" under EPIC. MCL 700.2801(2)(e)(i)-(iii) excludes a person who, for one year or more before death, was willfully absent from the decedent, deserted the decedent, or willfully neglected or refused to provide legally required support. This is fact-intensive, and courts examine actual conduct and duration.
Disqualification can be costly because consequences extend beyond the election. Disqualification may forfeit the intestate share under MCL 700.2102, the elective share under MCL 700.2202(2), pretermitted-spouse relief under MCL 700.2301(1), and homestead allowance, family allowance, and exempt property under MCL 700.2402, MCL 700.2403(1), and MCL 700.2404(1). Estranged couples who remained legally married may face contested litigation.
Waiver by Agreement
A spouse may give up these rights before or during the marriage. MCL 700.2205 permits a surviving spouse’s rights to be waived by written contract, agreement, or waiver signed by the spouse, which commonly arises through prenuptial or postnuptial agreements. Whether a waiver is enforceable depends on execution, disclosure, and other fact-specific considerations.
\u{1F4A1} Pro Tip: Locate any premarital agreement before filing an election. If a waiver exists, the strategic question often shifts from electing to challenging the agreement’s validity.
Practical Steps for a Widow Weighing a Spousal Election
Start by building a complete picture of both probate and non-probate assets. Because the reduction under MCL 700.2202(2)(b) depends on what you receive outside testate or intestate succession, valuing jointly held real estate, insurance proceeds, and retirement accounts may drive the entire calculation. A widow well provided for through beneficiary designations may gain nothing by electing.
Then compare that number to what the will gives you. The text of the election statute sets the formula, but applying it requires reliable asset values and accurate reading of the will’s dispositive provisions. Where the will is questionable, evaluate a contest and election on parallel tracks.
Account for who else may object. Children from a prior marriage, remainder beneficiaries, and the personal representative may all take positions on valuation. Outcomes in Michigan probate court often depend heavily on documentation.
Frequently Asked Questions
1. Does electing against the will mean I receive half of the entire estate?
No. Under MCL 700.2202(2)(b), the election yields one-half of your intestate share, not half the estate, reduced by half the value of property you received from the decedent outside testate or intestate succession.
2. What happens if I miss the 63-day deadline?
MCL 700.2202(3) sets the filing period, and MCL 700.2203 addresses consequences and limited exceptions. Courts interpret exceptions narrowly, so relief is neither automatic nor assured.
3. Can someone else make the election for me if I am incapacitated?
Under MCL 700.2202(5), the election for a legally incapacitated surviving spouse may be made only by court order after the probate court finds it necessary to provide adequate support for the incapacitated person during that person’s lifetime.
4. My husband lived in Florida but owned property in Flint. Which law applies?
MCL 700.2202(6) provides that when the decedent was domiciled outside Michigan, the law of the decedent’s domicile governs the right of election, though Michigan law may govern certain aspects of administering Michigan real property. A Genesee County estate attorney can help you evaluate domicile.
5. Can I change my mind after filing an election?
The statute contemplates a single choice, subject to a will that plainly shows contrary intent under MCL 700.2202(3). Because reversing course is generally unavailable, complete the analysis before filing.
Protecting Widow Inheritance Rights Before the Window Closes
A Flint widow may often take against her late spouse’s will, but the right is conditional, time-limited, and may be reduced by non-probate property she receives from the decedent. The Michigan elective share MCL 700.2202 framework favors spouses who act deliberately and on schedule. Because valuation disputes, disqualification claims under MCL 700.2801(2)(e), and waiver agreements can each change the outcome, the decision should rest on a full review of the facts.
If you are weighing whether to abide by a will or elect against it, the probate attorneys at CF Legal can review the inventory, calculate your potential elective share, and work to file before the statutory period runs. Call 810-232-1112 or schedule a consultation today.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.
