Features

Surviving spouse property protection

April 2023

by George M. Strander | Michigan Bar Journal

Spousal property protection on the death of the other spouse, existing outside other societal rules of ownership and inheritance, has existed for millennia, first largely in the disparate group of customs counted as dower and currently, at least in much of the United States, as a surviving spouse’s elective share right to take a portion of the decedent’s estate even if disinherited in the will. Development at different times in the law surrounding marriage, divorce, and probate have suggested distinct societal philosophies. Here, I outline that historical development, discuss a recent aberration in Michigan’s philosophy of spousal property protection, and identify a trend toward a new view in the relevant areas of marriage, divorce, and probate.

MARRIAGE AND FAULT

Marriage, in some form, predates history and has developed in distinct ways across multiple cultures.¹ Beyond the violence of marriage by capture, societies have employed marriage by purchase (with the groom’s family supplying to the bride’s family a “brideprice”) and, typically in more urbanized and class-stratified contexts, marriage with a reciprocal contribution (from the bride’s family as dowry.)² The wife’s retention of some part of the dowry as protection for her and her children on her husband’s death may have led to what we know as dower.³

In the historical English common law context, which is relevant to the development of surviving spouse property protection law in our country, dower, in general, guaranteed a widow a life estate in one-third of her deceased husband’s land acquired during the marriage, and surviving widowers had a somewhat similar right called curtesy.⁴ Colonial American law was also influenced by the then-prevailing English view of marriage in general, including the legal concept of coverture (where a married woman’s legal existence was under the cover of her husband) and, given the religious and societal importance of the institution, the basic prohibition on divorce.⁵

In England, outside of church annulment and the determination that a valid marriage had never existed, actions developed for separation and a kind of divorce through Parliament as some form of release from marital union.⁶ Both required findings of fault. Separation could be approved based on adultery, violence, sodomy, or heresy and parliamentary divorce at least based on adultery.⁷ Also, since the 1285 Statute of Westminster, dower had been conditioned on fault, requiring a widow not to have voluntarily left her husband and engaged in adultery.⁸

These fault-based conditions reflected at least two societal truisms. First, marriage is sacrosanct, and the failure of any marriage was really the failure of one of the parties, and second, the faults identified were contrary to the very foundation of marriage (expressed by marital obligations like fidelity, cohabitation, and support) and were reason to withhold from the faulty spouse the benefits of that institution.

AMERICA, MICHIGAN, AND VON GREIFF

Colonial and early American law on inheritance — as well as marriage and divorce — essentially incorporated English law of the time.⁹ This law developed in our country over the years and in different ways in different states in response to social and economic changes.¹⁰ Married women eventually gained property rights as well as other rights and coverture was abolished.¹¹ Wealth became less dependent on land and the inefficiencies regarding alienability of property held in life estate became more acute, and so in many cases dower (often merging with curtesy and becoming mostly gender neutral) morphed into the homestead allowance and fee simple elective share.¹² However, fault in general continued to circumscribe divorce and surviving spouse property rights.¹³

In Michigan, adoption of the Revised Probate Code (RPC) in 1979 confirmed several abandonment-like faults as barring a person from having intestate, elective share, or allowance property rights in relation to a deceased spouse’s estate.¹⁴ These provisions have essentially been retained by RPC’s successor, the Estates and Protected Individuals Code (EPIC), in terms of surviving spouse status:

… a surviving spouse does not include:

(e) An individual who did any of the following for 1 year or more before the death of the deceased person:

(i) Was willfully absent from the decedent spouse.

(ii) Deserted the decedent spouse.

(iii) Willfully neglected or refused to provide support for the decedent spouse if required to do so by law.¹⁵

Traditional Michigan divorce law had generally shadowed these provisions, specifying that desertion by a spouse for a term of two years was grounds to dissolve the marriage.¹⁶ Again, these examples from probate and divorce law focus on faults contrary to very foundation of marriage.

Recently, and in contemplation of EPIC’s fault provisions, the Michigan Supreme Court has charted a new path with respect to surviving spouse property rights. In the 2022 case In re Estate of Von Greiff, the Court took up the question of what it means for a spouse to have been willfully absent from her spouse for at least one year up to the spouse’s passing, and thus denied the rights of a surviving spouse under the aforementioned statute.¹⁷

The relevant facts of the case are simple: Anne and Hermann were in a strife-ridden marriage; Anne voluntarily left the home in May 2017 and filed for divorce in June 2017. Necessary communications between the two parties’ attorneys went on for some time, but from May 2017 on, Anne did not see nor have any direct contact with Hermann, who died (intestate) in June 2018.¹⁸

On appeal from the Court of Appeals, the personal representative of Hermann’s estate (and his daughter from an earlier marriage) argued that Anne should be barred from taking her intestate share of the estate because she had been willfully absent from Hermann for more than a year prior to his death. The Supreme Court ruled that regardless of Anne’s physical absence during Hermann’s last year, she was not willfully absent pursuant to the statute.¹⁹

The Von Greiff court, following its earlier opinion in the 2018 case In re Estate of Erwin,²⁰ concluded that “a finding of willful absence requires a ‘complete physical and emotional absence’” which is evidenced by “acts on behalf of the surviving spouse that for all intents and purposes are inconsistent with the very existence of a legal marriage.”²¹ Crucially, the Von Greiff majority interpreted this standard in the context of interspousal communications as: Are such “communications consistent with a recognition that the legal marriage still exists?”²² Though physically absent for Hermann’s last year, Anne was not emotionally absent since she indirectly participated in communications with Hermann that “recognized the existence of their marriage” — to wit, communications regarding her complaint for divorce from him.

Both Von Greiff and Erwin represent leaps in the law. First, Erwin read “willfully absent” to require emotional absence in addition to physical absence.²³ Second, although Erwin concluded that willful absence “results in an end to the marriage for practical purposes,”²⁴ Von Greiff keyed on Erwin’s reference to “inconsistency with the very existence of a legal marriage” and then read this inconsistency to be with the fact that a marriage exists rather than with the basis of the marriage itself.²⁵

As mentioned above, the fault conditions regarding surviving spouse property rights (and divorce) historically reflect ways the basis of a marriage could be destroyed and thus someone guilty of one of them could be denied certain protections under the law. Throughout history, these faults — including adultery, desertion, and cruelty — have typically been committed with clear recognition that a marriage existed.²⁶ In this societal philosophy, the key has been that the marriage itself has been attacked and not, pace Von Greiff, the fact that a marriage exists.²⁷

COMMUNITY PROPERTY, NO-FAULT DIVORCE, AND THE CONTRACT MODEL OF MARRIAGE

Beyond an assessment of the consistency of our jurisprudence on fault-based surviving spouse property rights, there are reasons to question the very point of fault in this area of the law. First, while elective share privileges arise in the context of separate marital property rights and serve a purpose as a safety net for a potentially disinherited spouse, this is not the only way to achieve this end. In community property systems, spouses become half owners in all the marital assets by virtue of marriage, eliminating the fear of a surviving spouse becoming destitute through disinheritance; elective share rights are not needed.²⁸

Community property has various ancient origins and the form in which it exists today in 10 U.S. states can be traced back as far as medieval Europe and the development of civil law on that continent.²⁹ Much more so than common law’s separate property system, community property sees marriage as a partnership whereby each spouse contributes to, and hence owns, marital assets.³⁰ There is little question of fault — which arose, for example, in Von Greiff — because the spouse’s share is, in a sense, already owned and does not face the same hurdles that arise in separate property divorce and elective share.

In comparison to community property, a similar but far more pervasive innovation from earlier times is the rise of no-fault divorce. During the no-fault revolution, in a matter of less than 20 years from the late 1960s to the mid-1980s most states, including Michigan, adopted a version of divorce which allowed one party to file a complaint for dissolution of the marriage without having to find fault with the other spouse.³¹ No-fault divorce breaks any lingering connection marriage could have to the ideal that it is an indissoluble union which, if dissolved, can somehow be saved in the eyes of society by blaming a party’s fault.³² It recasts marriage, once a family- , community- , and society-based alliance, as a (still momentous) merger of individuals in a society which is much more mobile, liberal, and individualistic than before.³³

The trend of society and the law is to see marriage through the lens of community property and no-fault divorce — as a contract between equals, a partnership that may or may not work in the end — rather than as a religiously and socially protected institution.³⁴ There are few legal barriers to dissolving a marriage and there is much less reason for a spouse to endure anything close to one of the conditions which is historically a basis for fault divorce — especially prolonged desertion or its kin — and less reason to put up fault-based roadblocks to a surviving spouse’s inheritance.³⁵

ENDNOTES

1. Westermarck, The History of Human Marriage (New York: Macmillan, 1891).

2. History of Human Marriage, pp 383-415 and Anderson, The Economics of Dowry and Brideprice, 21 J Econ Perspectives 151, 152-155 (2007) (noting that brideprice dates back to 3000 BCE and dowry to 800-300 BCE, brideprice is still practiced today, most notably in sub-Saharan Africa, and dowry is today quite prevalent in South Asia).

3. History of Human Marriage, pp 403-415.

4. Cahn, What’s Wrong About the Elective Share “Right”?, 53 U C Davis L Rev 2087, 2094-2095 (2020) and Rabinowitz, Origin of the Common-Law Warranty of Real Property and of the Inchoate Right of Dower, 30 Cornell L Rev 77, 90 (1944). Dower, which had priority over creditors of the estate, was a financial protection for widows at a time when property was inherited only by blood relatives and thus kept them from becoming a burden on society. See also Turnipseed, Community Property v The Elective Share, 72 La L Rev 161, 165 (2011) and Bridges, Marital Fault as a Basis for Terminating Inheritance Rights: Protecting the Institution of Marriage and Those who Abide by their Vows — ‘Til Death do them Part, 45 Real Prop Trust Est L J 559, 560-561 (2010).

5. Marriage then was not merely a union of two people, it was “a matter of a larger community” and “families used marriage to benefit politically, militarily, and commercially,” Brabcova, Marriage in Seventeenth-Century England: The Woman’s Story, available at [https:// perma.cc/SJR9-Z6PB] and Cunningham, Michigan’s Elective Share: An EPIC Failure, 94 U Det Mercy L Rev 273, 275 (2017). Coverture, whereby a married woman lost many rights to ownership and control of property, was a product of English medieval common law, Beattie, Married Women’s Property: A Medieval Perspective, Law & History Review [https://perma.cc/F7MM-G3SE]. See also Note, The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit, 74 Mich L Rev 76, 78 (1975), quoting Blackstone’s famous line from 1 Blackstone, Commentaries on the Laws of England, p 442: “By marriage, the husband and wife are one person in the law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband”). The early Anglican Church took on much of the Catholic Church’s Counter Reformation conservatism toward marriage, Foreman, The Heartbreaking History of Divorce, Smithsonian Magazine (February 2014), available at [https://perma.cc/NG75-MAYB]. All websites cited in this article were accessed March 14, 2023.

6. Legal separation was termed divortium a menso et thoro (literally, “divorce from table and bed”), Heartbreaking History of Divorce, and Parliamentary divorce divortium a vinculo matrimonii (“divorce from the bond of marriage”), M.arriage in Seventeenth-Century England.

7. Freda, Women and Parliamentary Divorce in England: From Wife-Sale to the Divorce Act of 1857, 52 Pravnehistoricke Studie 81, 84 (2022) and Heartbreaking History of Divorce.

8. Turtletaub, Misconduct in the Marital Relation, Adultery as a Bar to Dower, 13 U Miami L Rev 83, 83 (1958).

9. This incorporated the areas of dower, marriage (including coverture), and divorce, id.; Hirsch, “American History of Inheritance Law,” essay in Katz, ed, Oxford Int’l Encyclopedia of Legal History (Oxford: Oxford Univ Press, 2009); and Lee, Divorce Law Reform in Michigan, 5 U Mich J L Ref 409, 410 (1972). Dower existed in Michigan statute as early as 18th century territorial days and was formally recognized in Michigan jurisprudence in May v Rumney, ___ Mich ___ (1847), Michigan’s Elective Share: An EPIC Failure, 94 U Det Mercy L Rev at 309, and Anthony & Lauderman, The Demise of Dower, 25 Mich B J 34, 35 (September 2016).

10. “American History of Inheritance Law,” pp 236-238 (“[t]he nineteenth century was an age of momentous social and economic change in the United States and, concomitantly, a time of transformation and innovation in American law.” Hirsch also draws attention to changes regarding gender discrimination and family life in the 20th century) and Leeson & Pierson, Economic Origins of the No-Fault Divorce Revolution, 43 Eur J L Econ 419, 421 (2017) (“In the late eighteenth and early nineteenth centuries, most states moved from divorce by legislative act to divorce by judicial decree”).

11. All states had passed a form of anti-coverture Married Women’s Property Act (MWPA) by the end of the 19th century, following New York’s lead in 1848, McGee & Moore, Women’s rights and their money: a timeline from Cleopatra to Lilly Ledbetter, The Guardian (August 11, 2014) [https://perma. cc/7R5Y-7NP5]. Michigan’s MWPA was passed in a series of three statutes, enacted in 1855, 1911, and 1917, and the last remaining aspects of coverture in our state were abolished through the 1963 Michigan Constitution and the 1974 Equal Credit Opportunity Act, The Impact of Michigan’s Common-Law Disabilities of Coverture, 74 Mich L Rev at 79-80, 95-96. In the area of women’s rights, the 1920 passage of the 19th Amendment, guaranteeing women’s suffrage, should also be noted.

12. Michigan’s Elective Share: An EPIC Failure, 94 U Det Mercy L Rev at 284-286 and What’s Wrong About the Elective Share “Right”?, 53 U C Davis L Rev at 2097-2098. In the 19th century, widows gained intestate inheritance rights which generally meant dower was used to elect against a disinheriting will, “American History of Inheritance Law,” p 237. Michigan introduced a gender-neutral elective share and allowances in 1979 with the Revised Probate Code (Michigan’s Elective Share: An EPIC Failure, 94 U Det Mercy L Rev at 310-311), and curtesy existed for a short time in 19th century Michigan while Michigan dower famously remained only a widow’s right until its statutory abolition in 2017 in the shadow of the US Supreme Court’s decision in Obergefell v Hodges, 576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015), Meyers, Moseng & Stone, Dower: Important Protection or Sexist Anachronism?, 23 Mich Real Prop Rev 5, 6 (1996) and Sheid, The Death of Dower: Dower’s Repeal in Michigan, unpublished essay (Spring 2017), available at [https://perma.cc/DUG2-DK5B]. In states like Michigan that maintained dower concurrently with the typically higher-yielding elective share, the only theoretical reasons for someone to choose the former boiled down to restricting the alienability of land and avoiding creditors. See “American History of Inheritance Law,” p 237 and The Death of Dower.

13. Divorce Law Reform in Michigan, 5 U Mich J Law Ref at 411, Marital Fault as a Basis for Terminating Inheritance Rights, 45 Real Prop Trust Est L J at 562, and 139 ALR 486.

14. MCL 700.290 (repealed).

15. MCL 700.2801(2)(e). One falling under the provisions of the statute loses the right to take a share of an intestate estate (MCL 700.2102), the elective share contrary to the will (700.2202(2)), relief as a pretermitted spouse (i.e., a spouse married after the execution of the will, MCL 700.2301(1)), or the homestead or family allowance and any exempt property (MCL 700.2402, 2403(1), 2404(1)). Others outside of MCL 700.2801(2)(e) who might otherwise be considered a “surviving spouse” or benefit from an estate but who by operation of statute do not, include, in part, “[a] n individual who feloniously and intentionally kills or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent” (MCL 700.2803(1)), “[a] n individual who is divorced from the decedent or whose marriage to the decedent has been annulled” (MCL 700.2801(1)), and “[a]n individual who, at the time of the decedent’s death, is living in a bigamous relationship with another individual” (MCL 700.2801(2)(d)).

16. MCL 552.6 (earlier version).

17. In re Estate of Von Greiff, ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 161535). This opinion is available for review at [https://perma.cc/W5G2-LVT8].

18. Id. at ___; slip op at 3-5.

19. Id. at ___; slip op at 16.

20. In re Estate of Erwin, 503 Mich 1; 921 NW2d 308 (2018).

21. In re Von Greiff at ___; slip op at 12-13.

22. Id. at ___; slip op at 13-14.

23. This came from the majority’s attempt to distinguish willful absence from desertion. As Justice Viviano’s dissent in Erwin argues, desertion can still be distinguished from willful absence even if the latter is read only in terms of physical absence. Desertion, though often a leaving, centrally involves the impact of a hostilely disregarding attitude and can be committed by someone who through actions forces the other spouse to leave (sometimes termed “constructive desertion”), In re Erwin, 503 Mich at 32-40. See also Misconduct in the Marital Relation, 13 U Miami L Rev at 88, in reference to constructive desertion as part of the historical majority rule regarding the application of the Statute of Westminster’s bar on dower rights in the United States.

24. In re Erwin, 503 Mich at 27.

25. The Erwin court refers to ‘inconsistency with the very existence of legal marriage’ in reference to its discussion of all three fault conditions of MCL 700.2801(2)(e) and goes on in the same discussion to characterize all three conditions as involving “intentional acts that bring about a situation of divorce in practice…” Id., 503 Mich at 15.

26. This should be obvious. In typical cases of willful absence, desertion, or withholding of support required by law, the guilty party clearly recognizes the fact that he or she is married. Likewise, it is difficult to see how interspousal communications when one is willfully physically absent will not also involve this recognition, In re Von Greiff at ___; slip op at 4 (Viviano, J., dissenting).

27. It should be noted that about 10 other states have statutory provisions like Michigan’s which bar surviving spouse rights based on desertion/absence/abandonment. Some of these laws are more explicit on the issue of physical absence — e.g., Kentucky (“…voluntarily leaves…”; Ky Civ R 392.090(2)), Massachusetts (“…living apart…”; GL c 209, § 36), and New Jersey (“…living separate and apart…”, “…ceased to cohabit”; NJSA 3B:8-1).

28. Community Property v The Elective Share, 72 La L Rev at 172, 184, 186 (“The community property theory of asset distribution is much more effective at protecting the non-wage-earning spouse, especially during life, as he or she has an immediate property interest in any property deemed earnings during the marriage.” Some separate property states (Michigan not among them) have statutorily augmented the estate against which the elective share can take in an effort to improve the system; Turnipseed analogizes this system to “some school child’s Rube Goldberg machine trying, in as complex a manner as humanly possible, to solve a problem which community property already solves.”) One key difference between community property and separate property regimes is that, a la Goldberg, the latter is plagued by any number of inventive and evolving loopholes that can be used to thwart a surviving spouse from receiving what otherwise would have been received. Id., 72 La L Rev at 179-182.

29. Newcombe, The Origin and Civil Law Foundation of the Community Property System, Why California Adopted it, and Why Community Property Principles Benefit Women, 11 U Md L J Race Rel Gend Class 1 (2011). The 10 community property states are Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

30. Id. at 9.

31. Economic Origins of the No-Fault Divorce Revolution, 43 Eur J L Econ at 422-423.

32. Id. at 421 (explaining how divorce prior to no-fault often involved spouses colluding to ‘concoct false evidence of legally accepted grounds for divorce with lawyers and judges going along with the charade’).

33. Id. at 427-428 (citing the growing economic independence of women from men and the increasing separation of marriage and children as creating efficiency pressure for divorce-law liberalization). See also Divorce Law Reform, 5 U Mich J L Ref at 417-18. Gone are the days when husband and wife, if the marriage today is so constructed, were cast into separate roles — i.e., breadwinner and homemaker; even so, when roles were more rigid there was good reason to value the wife’s contribution in allowing the husband simply to focus on work, What’s Wrong About the Elective Share “Right”?, 53 U C Davis L Rev at 2095.

34. Economic Origins of the No-Fault Divorce Revolution, 43 Eur J L Econ at 423.

35. Misconduct in the Marital Relation, 13 U Miami L Rev at 86.

George M. Strander is an attorney from Albion. He serves on the State Bar of Michigan Civil Procedure and Courts Committee and the Michigan Bar Journal Committee.