In Michigan, you cannot completely disinherit your spouse through a will. Even if your will leaves your husband or wife nothing, they have a legal right to claim a portion of your estate. This right is called the elective share, and it exists under Michigan's Estates and Protected Individuals Code (EPIC) at MCL 700.2202. Whether you are a surviving spouse trying to understand your options, or someone planning your estate with a second marriage in mind, this guide explains exactly how the elective share works, what it covers, and what it does not.
What Is the Elective Share?
The elective share is a statutory right that allows a surviving spouse to reject what they were given (or not given) in the deceased spouse's will and instead claim a set portion of the estate. It is Michigan's way of making sure a married person cannot use a will to leave their spouse with nothing.
When a Michigan resident dies with a will, the surviving spouse has two choices under MCL 700.2202(2):
- Option A: Accept what the will provides. If the will leaves you half the estate, a specific dollar amount, or particular property, you can take that and move on.
- Option B: Elect against the will. You reject the will's provisions and instead claim one-half of the share you would have received if your spouse had died without a will at all. This amount is then reduced by one-half of any property you already received from the deceased spouse outside the will (joint accounts, life insurance proceeds, etc.).
The elective share exists as a floor, not a ceiling. If the will already gives you more than the elective share amount, there is no reason to elect against it. The election only makes sense when the will gives you less than what the law guarantees.
How the Elective Share Is Calculated
The math has a few steps, and it helps to walk through them one at a time.
Step 1: Determine the intestate share
First, figure out what the surviving spouse would have received if the deceased spouse had died without a will. Michigan's intestacy rules under MCL 700.2102 determine this, and the amount depends on who else survives:
- No surviving children or parents: The spouse gets everything.
- Surviving parents but no children: The spouse gets the first $273,000 (2024 inflation-adjusted amount) plus three-quarters of the remaining estate.
- Surviving children who are also the spouse's children: The spouse gets the first $273,000 plus one-half of the remaining estate.
- Surviving children who are not the spouse's children: The spouse gets the first $182,000 (2024 amount) plus one-half of the remaining estate.
These dollar thresholds are adjusted for inflation each year by the Michigan legislature under EPIC Section 1210.
Step 2: Take half of that intestate share
The elective share is one-half of whatever the intestate share would have been. So if the intestate share would have been $400,000, the starting elective share amount is $200,000.
Step 3: Subtract offsets
Now reduce that amount by one-half of the value of property the surviving spouse already received from the deceased spouse outside the will. This includes things like:
- Jointly held property that passed by survivorship
- Life insurance proceeds where the spouse was named beneficiary
- Retirement account distributions payable to the surviving spouse
- Payable-on-death (POD) and transfer-on-death (TOD) accounts
- Certain lifetime gifts made within two years of death
The offset prevents double recovery. If the deceased spouse already provided for the survivor through non-probate transfers, those amounts reduce what the survivor can claim from the probate estate.
A quick example
Say a husband dies with a will that leaves his wife $10,000. They have two children together, and the probate estate is worth $500,000. The wife also received $100,000 from a joint bank account that passed automatically at death.
- Intestate share: first $273,000 + half of remaining $227,000 = $386,500
- Half of intestate share: $193,250
- Offset: half of $100,000 non-probate transfer = $50,000
- Elective share: $193,250 minus $50,000 = $143,250
The wife could elect to receive $143,250 from the probate estate instead of the $10,000 the will gave her. That is a significant difference.
What Assets Does the Elective Share Cover?
This is where Michigan law gets important, and where many people are surprised.
The elective share in Michigan only applies to the probate estate. That means it only covers assets that pass through the will and are administered by the probate court. This is a critical distinction because many other states use an "augmented estate" approach that includes trust assets and other non-probate transfers in the calculation.
Assets included in the probate estate (subject to the elective share):
- Real estate owned solely by the deceased
- Bank accounts in the deceased's name only
- Personal property (vehicles, furniture, collections)
- Business interests owned individually
- Investment accounts without a TOD designation
Assets NOT included in the probate estate (not subject to the elective share):
- Assets held in a revocable living trust
- Jointly owned property with right of survivorship
- Life insurance with a named beneficiary
- Retirement accounts (IRAs, 401(k)s) with a named beneficiary
- Payable-on-death bank accounts
- Transfer-on-death investment accounts
If there is no probate estate, there is nothing for the surviving spouse to elect against. This is a major difference from states like New York, Florida, or those that adopted the full Uniform Probate Code, where trust assets may be included in the calculation.
Filing Deadline and Process
A surviving spouse who wants to elect against the will must act within a specific timeframe. Under MCL 700.2202(4), the election must be filed with the probate court within the later of:
- 63 days after the date set for presentment of claims against the estate, or
- 63 days after the personal representative serves the estate inventory on the surviving spouse
Miss that deadline and the right is gone. The election must be made in writing, filed with the court, and it must be exercised during the surviving spouse's lifetime. A deceased spouse's estate cannot make the election retroactively.
If the surviving spouse is legally incapacitated, the election can be made on their behalf by a conservator or guardian, but only with court approval under MCL 700.2202(3).
Other Surviving Spouse Protections
The elective share is not the only protection Michigan law provides to surviving spouses. Even if a will attempts to disinherit a spouse entirely, the following allowances are available:
Homestead allowance
Under MCL 700.2402, the surviving spouse is entitled to a homestead allowance of $15,000 (adjusted for inflation annually). If there is no surviving spouse, each minor or dependent child receives this allowance instead. The homestead allowance is exempt from all claims against the estate and has priority over creditors.
Family allowance
MCL 700.2403 provides a reasonable allowance for the maintenance of the surviving spouse and minor children during the administration of the estate. This amount is meant to cover living expenses while the estate is being settled, which in Michigan typically takes 7 to 18 months.
Exempt property
Under MCL 700.2404, the surviving spouse can claim up to $15,000 (adjusted for inflation) worth of household furniture, automobiles, furnishings, appliances, and personal effects from the estate, beyond what is provided in the will. If there is no surviving spouse, the deceased's minor and dependent children share this entitlement.
These three allowances exist independently of the elective share and can be claimed in addition to it. They are designed to prevent a surviving spouse from being left completely destitute, even temporarily, while an estate is being administered.
The Trust Loophole
Here is the part of Michigan law that catches many surviving spouses off guard. Because the elective share only applies to the probate estate, a spouse who transfers all of their assets into a revocable living trust before death can effectively eliminate the surviving spouse's elective share right.
If there are no assets in the probate estate, there is nothing to elect against. The trust assets pass according to the trust terms, and the surviving spouse has no statutory right to claim a share of them.
This is not a theoretical concern. It happens regularly in second marriages and blended family situations where one spouse wants to ensure their children from a prior relationship receive the bulk of the estate.
Some states have closed this loophole by adopting augmented estate statutes that include trust assets in the elective share calculation. Michigan has not done so. As a result, trust planning is one of the most effective tools for controlling how assets are distributed after death, for better or for worse.
If you are concerned about a spouse using a trust to disinherit you, the most important step is to address the issue during the marriage, either through open communication, a postnuptial agreement, or by ensuring you have assets titled in your own name or jointly.
Can You Waive the Elective Share?
Yes. A surviving spouse can waive the right to the elective share through a prenuptial or postnuptial agreement. Under MCL 700.2205, a waiver is valid if it meets these conditions:
- It must be in writing and signed by the waiving spouse
- It must be made voluntarily (no coercion or duress)
- There must have been fair disclosure of the other spouse's assets and debts before signing, or the waiving spouse must have voluntarily waived the right to disclosure
Courts scrutinize these waivers carefully. The "fair disclosure" requirement is enforced strictly. If the spouse who died did not fully disclose their financial situation before the waiver was signed, a probate judge can throw out the waiver entirely, regardless of what it says.
Prenuptial agreements that include an elective share waiver are common in second marriages, especially when both spouses have children from prior relationships and want to keep their estates separate.
How to Plan Around the Elective Share
Whether you want to protect a surviving spouse or ensure your estate plan works the way you intend, understanding the elective share changes how you approach planning.
If you want to protect yourself as a surviving spouse
- Do not sign away your rights without understanding them. If your spouse asks you to sign a prenuptial agreement that waives the elective share, make sure you understand exactly what you are giving up.
- Pay attention to how assets are titled. If your spouse is moving assets out of their individual name and into a trust or someone else's name, that could reduce your elective share to zero.
- Know the deadline. If your spouse dies and you want to elect against the will, you have a limited window. Talk to an attorney quickly.
If you want to control your estate distribution
- Consider a revocable living trust. Because Michigan's elective share only applies to probate assets, funding a trust with your major assets is the most effective way to control distribution. This is especially relevant in blended family situations.
- Use beneficiary designations strategically. Life insurance, retirement accounts, and TOD accounts all bypass both the will and the elective share.
- Get a prenuptial or postnuptial agreement. If both spouses agree on how assets should be distributed, a properly executed agreement is the cleanest solution.
- Do not rely on the will alone. A will is subject to the elective share. If your plan depends on specific distributions that your spouse might not agree with, the will by itself is not enough.
If you are in a blended family
Blended families face the most complicated elective share issues. You want to provide for your current spouse while also protecting your children from a prior relationship. The combination of a revocable trust (to remove assets from the probate estate), a prenuptial agreement (to waive the elective share), and strategic beneficiary designations gives you the most control. Without all three, there is a risk that your estate plan will not work as intended.
Frequently Asked Questions
Can my spouse take the elective share and also keep what the will gives them?
No. The election is an either-or choice under MCL 700.2202(2). Your spouse either accepts what the will provides or rejects the will and takes the elective share. They cannot do both. However, the homestead allowance, family allowance, and exempt property can be claimed in addition to whichever option they choose.
Does the elective share apply if we are separated but not divorced?
Yes. Under Michigan law, you remain legally married until a divorce is finalized. A legal separation does not change your spouse's right to the elective share. Only a final judgment of divorce terminates those rights. If you are separated and concerned about the elective share, consult an attorney about your options.
What if my spouse and I have a prenup — does the elective share still apply?
It depends on what the prenuptial agreement says. If the agreement specifically waives the right to the elective share and meets Michigan's validity requirements (written, voluntary, fair disclosure), then the elective share is waived. If the prenup does not mention the elective share, or if it was signed without adequate financial disclosure, the surviving spouse may still be able to claim it.
Can children claim an elective share?
No. The elective share under MCL 700.2202 is available only to a surviving spouse. Adult children have no right to elect against a will in Michigan. Minor children and dependent children may be entitled to the homestead allowance, family allowance, and exempt property if there is no surviving spouse, but there is no elective share for children.
Does the elective share apply to assets in a trust?
No. Michigan's elective share is limited to the probate estate. Assets held in a revocable living trust, or any other non-probate arrangement, are not subject to the elective share. This is one of the most significant features of Michigan estate law and a key reason many people use trusts as part of their estate plan.
What happens if I do nothing — do I automatically get the elective share?
No. The surviving spouse must affirmatively file a written election with the probate court within the deadline (63 days after presentment of claims or service of the inventory, whichever is later). If you do not file, you are deemed to have accepted the will's terms. The court will not elect for you.
Make Sure Your Plan Accounts for Spousal Rights
Whether you are creating an estate plan for the first time or updating one after a life change, understanding the elective share is essential. It affects how you title assets, whether you need a trust, and how your will should be structured. The good news is that with the right documents, you can create a plan that works for your entire family.
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