Can I Disinherit My Spouse by Leaving the Spouse Out of My Will?

By: Marty Bodnar, Estate Planning Attorney at Pear Sperling Eggan & Daniels, P.C.

Our clients raise this question for various reasons. They could be inquiring because they are not getting along and don’t want their spouse to receive anything from their estate when they pass away. It could be that the parties have a pre-nuptial agreement or a financial plan in place that the client wants to make certain is not subject to change by the spouse after the client dies. It could also be a blended family with each spouse wanting to give all of his or her assets to his or her family and not to the family of the spouse. Or it could be that one or both parties are facing long-term care expenses and it’s not their intention to provide additional assets to a surviving spouse that may disqualify them from entitlements or Medicaid assistance.

In Michigan, you’re not able to disinherit your spouse by omitting to provide for him or her in your will or by including an explicit statement in your will that your spouse is not to receive anything from your estate. The law in Michigan provides a surviving spouse in a testate proceeding (one with a will of the deceased spouse admitted to probate by the Court) with the right to elect a share of the estate of his or her spouse even if the will says the spouse is not to receive anything.

The options available for the surviving spouse to elect are 1) that the spouse will abide by the terms of the will, or 2) that the spouse will take 1/2 of the share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent's death. In addition, the spouse is required to be given a written notice advising him or her of the options he or she has.

This right to elect a share only applies to assets that are involved in a probate proceeding. Assets of the deceased that aren’t subject to probate, such as assets owned by a trust of the deceased spouse, can be kept from a surviving spouse and be given to others without the spouse having the election rights provided for probate assets.

The facts and circumstances of each client are unique and you should discuss your plans with your attorney. If you’re interested in discussing this issue more, one of our estate planning attorneys would be happy to meet with you. Please call (734) 665-4441 to schedule your initial consultation!