Manistee, MI asked in Divorce, Estate Planning and Family Law for Michigan

Q: I want to dispute Michigans intestancy laws and prove my fathers true wishes for his home, how would i do this?

My sister and I are currently in probate court battling fathers estranged wife over his home. They were in the process of divorce when he committed suicide and I have numerous divorce documents, texts, handwritten notes and witness testimonies that show she was not to have the home. We are currently set to have a hearing in April over the valuation of the home, so it can be split according to intestate succession, but she has gotten a lowball appraisal by pointing out all the faults with the home so that my sister and I will inherit nothing. She is not on the deed and never was, my father still believed Michigan has dower rights and that she would have rights to 1/3 of the home so it was stated in the documents repeatedly that she was to sign a quitclaim deed, but dower rights were abolished in 2017. We want to dispute the intestacy law and prove my fathers wishes were that she does not get his home and instead it be awarded to my sister and I. Do we wait until the hearing or act now?

3 Lawyer Answers
Kenneth V Zichi
Kenneth V Zichi
Answered
  • Estate Planning Lawyer
  • Fowlerville, MI
  • Licensed in Michigan

A: I'm sorry to say that unless your father put his 'wishes' into a will or other testamentary document, the laws of intestacy are how his estate will be divided. His misunderstanding of dower really won't play into anything here, and if the divorce was not in process (as in filed with the court and in active litigation) there really isn't anything that can be done. Even IF the case were filed, it is still a long pull to get beyond things here as your step-mother has 'spousal rights' under intestacy until a divorce is finalized in most cases.

"Separation" (but note, Michigan does not have a 'legal separation' status as many states do) can end a spouse's right to inherit, but this is complicated, and it does not necessarily do so.

You NEED to have local legal representation to explain and explore what, if any, other options there may be.

This is not a good "DIY" project. Get local representation.

-- This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship.

I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice

Brent T. Geers agrees with this answer

Brent T. Geers
Brent T. Geers
Answered
  • Estate Planning Lawyer
  • Grand Rapids, MI
  • Licensed in Michigan

A: I agree with attorney Zichi's comments. Your aim is not to "dispute" intestacy laws, which there is no dispute of - it is the law of Michigan. Either intestacy doesn't apply because your father had a valid will or trust, or intestacy does apply as a matter of law. The law has no concern about the strength of legal relationships; it is not that uncommon to have situations where married people live separately, sometimes for years, but don't ever legally divorce for whatever reason.

By the facts you present, you have two things to argue: 1) the value of the house, which if successful, could mean that the estate exceeds the value of his wife's elective share. You will need a professional appraisal of your own to show that, which costs money. 2) that a divorce was finalized or in the process of being finalized, and so she should not be considered a legal spouse at this point. To do that, you are going to need a court file showing active litigation. Estrangement or a declaration that someone wants a divorce doesn't cut it. In Michigan, you are married when you are legally married under some state law; and you are divorced when a judgment of divorce is signed and entered.

Unless you are able to prove a finalized divorce, the only issue before the court at this time is the value of the house. You will need to get your own appraisal to have an effective argument. If you are able to prove a finalized divorce, then you may need to file a new petition.

Brent T. Geers
Brent T. Geers
Answered
  • Estate Planning Lawyer
  • Grand Rapids, MI
  • Licensed in Michigan

A: One further thing to consider: a handwritten note, signed by the decedent, may qualify as a holographic will, provided that it evidences a complete distribution of the estate. A note that says "John gets my house", probably doesn't get you there; a note that says "John gets my house and everything else goes to my wife", maybe does.

You need to know though, that even if you produced some writing expressing your father's wishes that qualifies as a will, if he is determined to have been legally married upon his passing, his will will still be entitled to her elective share regardless of what that writing says. You simply cannot effectively disinherit a spouse without some pretty advanced estate planning. That elective share may still encompass the house, which is why the issue of it's value is paramount now.

As you can see by the responses, probate administration can be complex and is not something to be done without a lawyer. The judge will apply the law.

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