Michigan Elective Share: What Surviving Spouses Need to Know

You just lost your spouse. You read the will and discover that most of the estate went to their adult children from a first marriage, or to a sibling, or to a charity - and you were left with almost nothing. Michigan law does not let a spouse do that to you without warning. Under MCL 700.2202, a surviving spouse of a Michigan decedent has the right to reject the will and instead claim a statutory minimum share of the probate estate. Plus you are automatically entitled to a homestead allowance, family allowance, and exempt property allowance under MCL 700.2402, 2403, and 2404 - regardless of what the will says. This guide breaks down exactly what a Michigan surviving spouse can claim, the 63-day deadline that trips up most people, and the massive planning trap involving funded revocable trusts that Michigan lawyers do not always explain.

The 30-Second Answer

Michigan gives every surviving spouse three overlapping protections against being disinherited by a Michigan-domiciled spouse:

1. Elective share (MCL 700.2202): The surviving spouse can reject the will and instead claim one-half of what would have been the intestate share, reduced by half the value of non-probate transfers the surviving spouse received (life insurance, joint accounts, POD/TOD assets, etc.).
2. Homestead allowance (MCL 700.2402): A statutory cash payment (currently around $25,000, inflation-adjusted) to the surviving spouse, off the top, regardless of what the will says.
3. Family allowance and exempt property allowance (MCL 700.2403, 2404): Additional protections - reasonable living support during probate plus up to about $25,000 of household goods, vehicle, appliances, and personal effects.

These claims stack. And they generally cannot be waived except by a valid prenuptial or postnuptial agreement signed with full financial disclosure under MCL 700.2205. But there is one enormous catch: the elective share only reaches the deceased spouse's probate estate. Assets held in a funded revocable trust, life insurance with named beneficiaries, joint accounts, and POD/TOD accounts are all outside the reach of the elective share. If your spouse moved everything into a revocable trust before dying, the elective share may be worth nothing to you.

What Is a Michigan Elective Share?

An "elective share" is a protection built into Michigan probate law that stops a spouse from completely disinheriting the other spouse in a will. Michigan does not follow the community-property model that some states do. Instead, Michigan follows an "elective share" model where the surviving spouse must actively file a written election in probate court within a specific time window to claim their statutory minimum instead of what the will says.

The statute is MCL 700.2202. Under subsection (2), when a Michigan-domiciled spouse dies leaving a will (testate), the surviving spouse must choose ONE of these three options:

1. Abide by the terms of the will (accept whatever the will gives the surviving spouse - default choice if the spouse does nothing)
2. Take one-half of the sum or share the spouse would have received under Michigan intestate succession, reduced by half the value of non-probate transfers the spouse got from the decedent
3. Take a dower right (limited to widows and only relevant to pre-April-6-2017 deaths - repealed for modern cases)

The election is all-or-nothing. You cannot mix and match. Either you accept the will, or you elect against it. Once filed, the election is final.

The Math: How Much Can a Surviving Spouse Actually Claim?

To calculate the elective share, first calculate what the surviving spouse would have received under Michigan intestate succession (MCL 700.2102) if there had been no will at all. Then take half of that number. Then subtract half of the value of everything the surviving spouse got from the deceased through non-probate transfers (life insurance, joint accounts, POD/TOD, beneficiary designations, gifts within 2 years of death subject to federal gift tax).

The Michigan intestate spousal share (as of 2018 dollars, adjusted annually under MCL 700.1210) works like this:

• Decedent left no descendants and no parent: Spouse takes the entire intestate estate.
• All descendants are also descendants of the surviving spouse, no other descendants: Spouse takes the first $229,000 (2018 base amount, inflation-adjusted; roughly $265,000 in 2026 estimated) plus half of the balance.
• No descendants, but one or more parents survive: Spouse takes the first $229,000 plus three-fourths of the balance.
• All descendants of decedent are descendants of spouse, but spouse has additional descendants not of decedent: Spouse takes the first $229,000 plus half of the balance.
• One or more descendants of decedent are NOT descendants of spouse (second-marriage situation): Spouse takes the first $153,000 (roughly $175,000 in 2026 estimated) plus half of the balance.
• None of decedent's descendants are descendants of spouse: Spouse takes the first $100,000 plus half of the balance.

The elective share is then half of whichever bucket applies. So if your spouse died with two adult children from a first marriage and no children with you (bucket 5), your intestate share would be roughly $175,000 plus half the balance. Your elective share would be half of that: about $87,500 plus one-quarter of the balance - reduced by half the value of anything you already got outside the will (a joint bank account, a life insurance payout, joint tenancy on the house, etc.).

The Four Buckets Every Michigan Surviving Spouse Should Know

Beyond the elective share, Michigan surviving spouses have three additional protections that are automatic, do not require election, and cannot be waived by the will:

1. Homestead Allowance (MCL 700.2402)

A cash amount the surviving spouse receives off the top before creditors, even if the will disinherits the spouse. The base was $15,000; inflation adjustments under MCL 700.1210 have brought it to approximately $25,000 as of the most recent adjustments. If there is no surviving spouse, the minor and dependent children of the decedent divide the homestead allowance equally.

2. Family Allowance (MCL 700.2403)

A "reasonable" cash allowance paid from the estate to support the surviving spouse and minor/dependent children during probate administration. There is no fixed dollar cap - the probate court decides what is reasonable based on the estate size, family needs, and administration timeline. Typically paid monthly.

3. Exempt Property Allowance (MCL 700.2404)

The surviving spouse (or minor/dependent children if no spouse) can claim household furniture, automobiles, furnishings, appliances, and personal effects up to approximately $25,000 in value (inflation-adjusted from the $10,000 base). If the physical items are worth less, the spouse can take other estate assets to make up the difference.

4. Elective Share (MCL 700.2202)

The elective share described above. Half the intestate share, reduced by half of non-probate transfers. Requires written election within the statutory deadline.

All four buckets can stack. A surviving spouse claiming the elective share still gets the homestead allowance, family allowance, and exempt property allowance in addition. These allowances also apply if the spouse chooses to abide by the will - so a spouse who receives, say, $50,000 under the will still automatically gets the homestead allowance and exempt property on top of that $50,000.

The Michigan Trap: Elective Share Only Reaches Probate

This is the single most important thing a Michigan surviving spouse needs to understand, and it is often the difference between recovering something meaningful and recovering nothing:

The elective share only reaches the deceased spouse's probate estate.

Michigan is unusual in this respect. Many states use an "augmented estate" concept that pulls funded revocable trusts, POD/TOD accounts, and other non-probate transfers back into the calculation. Michigan does not (see Greenleaf Trust's detailed writeup of MCL 700.2202 for background). Under Michigan law, the elective share is calculated against the probate estate only, then reduced by non-probate transfers the surviving spouse already received.

The practical consequence: if the deceased spouse funded a revocable living trust during life and transferred essentially all their assets into that trust, there may be almost no probate estate left. And an elective share against a probate estate of zero equals zero. This is one of the reasons some Michigan estate planners recommend funded revocable trusts specifically for second-marriage situations where one spouse wants to control who ultimately receives the assets after both spouses have passed.

Examples where the elective share is worth little or nothing:

• Deceased spouse funded a revocable trust with all assets. Probate estate is zero. Elective share is zero.
• House was owned as tenants-by-the-entirety. It passes to surviving spouse automatically by operation of law. Never enters probate.
• All financial accounts had POD/TOD designations to non-spouse beneficiaries. Not in probate estate. Elective share does not reach them.
• Life insurance was payable to a specific non-spouse beneficiary. Not part of the probate estate.

See our Lady Bird deed vs trust guide for how the trust-versus-probate decision plays out. If you are drafting your own estate plan and want to protect a surviving spouse, do NOT rely on the elective share as the safety net - it can be avoided too easily.

Deadlines: The 63-Day Rule

Under MCL 700.2202(3), the surviving spouse must file the written election with the probate court within 63 days after either:

1. The date for presentment of claims against the estate, or
2. The date the estate inventory is served on the surviving spouse

Whichever date is later. Miss the deadline, and Michigan law "conclusively presumes" that the surviving spouse elected to abide by the will (MCL 700.2203). There are two narrow exceptions: newly-discovered assets after the estate closed, and delays caused by pending litigation - both require a "good cause shown" or "proper" finding by the probate judge.

The personal representative of the estate is required by Michigan Court Rule 5.305 and MCL 700.2202(4) to give the surviving spouse written notice of the right to elect within 28 days of the personal representative's appointment. If you are a surviving spouse and you have not received this notice within 30-40 days of the estate opening, contact the probate court or an attorney immediately.

When a Spouse Cannot Claim Elective Share

Michigan law disqualifies certain individuals from being treated as a "surviving spouse" for purposes of the elective share, allowances, and intestate rights. Under MCL 700.2801, a person is NOT a surviving spouse if:

• They are divorced from the decedent or the marriage was annulled
• They obtained or consented to a divorce or annulment not recognized in Michigan
• They remarried a third person (even if the earlier divorce was invalid in Michigan)
• They are living in a bigamous relationship with another individual at the time of decedent's death
• They were, for one year or more before the decedent's death: (i) willfully absent from the decedent spouse, (ii) deserted the decedent spouse, or (iii) willfully neglected or refused to provide support if legally required
• They feloniously and intentionally killed the decedent, or were convicted of abuse, neglect, or exploitation of the decedent (MCL 700.2803)

Separately, under MCL 700.2205, a spouse can voluntarily waive elective share, homestead allowance, family allowance, and exempt property rights via a written contract signed after fair disclosure - typically a prenuptial or postnuptial agreement. Michigan courts have flagged several factors that create a presumption of non-disclosure (see In re Estate of Waller, 300436, Nov. 22, 2011). If your prenup lacked financial disclosure, the waiver may be unenforceable.

Planning Ahead: Second Marriages, Prenups, and Trusts

Elective share issues are most common in second marriages. A common scenario:

• Spouse A has adult children from a prior marriage
• Spouse A remarries Spouse B (no children together)
• Spouse A wants their estate to pass primarily to their children, with modest provision for Spouse B
• Spouse A dies with a will leaving 90% to their children and 10% to Spouse B
• Spouse B files an elective share under MCL 700.2202 to claim half the intestate share (which in a second marriage without common children is $100,000 base plus half of any excess)

Two clean planning options if you want to redirect assets to your children in a second marriage without triggering elective-share litigation:

1. Prenuptial or postnuptial agreement with full financial disclosure where Spouse B voluntarily waives elective share, homestead allowance, family allowance, and exempt property rights.
2. Funded revocable living trust holding all major assets. Because the trust corpus is not part of the probate estate, it is outside the reach of the elective share. Combine with a "pour-over will" and beneficiary designations to keep the probate estate minimal.

Both approaches are legally solid but ethically weighted. Michigan estate planners generally view a funded revocable trust as legitimate planning; some also urge open family conversations so the surviving spouse understands what they will and will not receive.

DIY Playbook for Michigan Surviving Spouses

If you are a Michigan surviving spouse and you are worried you are being cut out of your deceased spouse's estate:

1. Get the will. The personal representative or nominated personal representative is required to file the original will with the Michigan probate court under MCL 700.2516. Ask for a copy.
2. Ask for the inventory and notice of right of election. The personal representative should serve you both within 28 days of appointment under MCL 5.305. If you have not received these within 30-40 days, contact the probate court.
3. Do the elective-share math. Estimate the probate estate value. Estimate what you received outside probate (joint accounts, life insurance, POD/TOD, 401(k)/IRA beneficiary designations, tenancy-by-the-entirety property). Compare to your intestate share under MCL 700.2102.
4. Calendar the 63-day deadline from the later of presentment of claims OR service of inventory. Do not miss it.
5. File the election if math favors it. The election is a written filing with the probate court. It is a "one choice" decision - either abide by the will or elect against it.
6. Claim the automatic allowances - homestead ($25k), family (reasonable), and exempt property ($25k). These do not require election and are yours by right unless you validly waived them in a prenup or postnup.
7. Consider a probate attorney if the estate is large, complex, or contested. Elective share disputes often justify hiring counsel because the recovery can be significant.

Frequently Asked Questions

Can a Michigan spouse be completely disinherited?

Not from the probate estate, no. The elective share plus homestead, family, and exempt property allowances guarantee some minimum recovery from the probate estate. But if the decedent moved all assets outside probate (into a funded revocable trust, joint accounts, POD/TOD, life insurance beneficiaries), the practical answer is often "yes, effectively" - because there may be no probate estate to elect against.

Does the elective share depend on how long we were married?

No. Michigan's elective share under MCL 700.2202 is not tied to length of marriage. A one-week marriage and a fifty-year marriage produce the same statutory percentages. (Some commentators reference a graduated schedule based on years of marriage - that formula is from the Uniform Probate Code and does NOT apply to Michigan probate estates as of the current MCL 700.2202 language.)

What if my spouse's estate is small?

The homestead allowance ($25k) and exempt property allowance ($25k) still apply, off the top, before creditors. The elective share may be modest but the allowances often exceed 50% of a small estate.

Can I waive elective share retroactively after my spouse dies?

Yes. If the estate is being administered and you are content with the will's provisions, you simply do nothing - the 63-day clock runs out and Michigan treats you as having elected to abide by the will. There is no formal "waiver" filing required to abide by the will.

My prenup said I waive elective share. Is that enforceable?

Usually yes if signed with fair disclosure of finances. Michigan courts require the disclosure to be substantial and meaningful - not just a boilerplate statement that "each party is aware of the other's finances." See In re Estate of Waller (2011). If the disclosure was inadequate, the waiver may be invalidated. Have an attorney review before assuming your prenup blocks you.

Can I claim elective share against a trust?

No. Michigan's elective share reaches only the probate estate. A funded revocable trust is not probate property. If your spouse's assets are all in trust, the elective share is worth zero. This is a major difference between Michigan and states that use an "augmented estate" concept.

What about my spouse's IRA or 401(k)?

Federal law (ERISA and IRC section 401(a)(11)) actually protects a surviving spouse's rights in most employer-sponsored 401(k) plans - the plan cannot pay out to a non-spouse beneficiary without written spousal consent. For IRAs, there is no similar federal spousal protection - Michigan spouses can be legally cut out of a Michigan-owner's IRA by beneficiary designation. IRAs pass by beneficiary designation and are outside probate.

What if my spouse died without a will (intestate)?

Then the elective share is not needed - you are already entitled to the intestate share under MCL 700.2102. Elective share only exists to protect against wills that reduce the spouse's share below intestate default. See our Michigan intestate succession guide for the full breakdown.

How much does it cost to file an elective share?

The filing is a written election with the probate court, typically a one-to-two-page document, and standard Michigan probate filing fees apply (see our Michigan probate filing fees guide). If the estate is contested, attorney fees can be substantial. Some estate attorneys will take elective share cases on contingency if the potential recovery is large.

Does my elective share come before or after creditors?

The homestead allowance, family allowance, and exempt property allowance come BEFORE almost all creditors (only administration costs and reasonable funeral expenses have priority). The elective share itself is generally subject to the same creditor priority as other beneficiary distributions - creditors get paid from the estate first, elective share is calculated on what remains.

Can I still elect if my spouse's will was drafted before we got married?

Yes. Michigan MCL 700.2301 gives a "pretermitted spouse" (one married after the will was drafted) an automatic intestate share of the portion of the estate not left to descendants who are not your descendants. You are also still entitled to elect against the will under MCL 700.2202 if that yields a larger amount (see Michigan Court of Appeals, Hill v. Estate, No. 262314, Feb. 22, 2005).

Protect Your Spouse with the CreateMIWill Kit

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