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.