Surviving Spouse’s Willful Absence – Apparently 39 Years Isn’t Enough

Take-Away: Under Michigan’s probate statutes, a spouse who is willfully absent from their deceased spouse for more than one year automatically forfeits his/her rights to take an intestate share or to serve in a fiduciary capacity over their spouse’s estate or affairs. For some reason our Courts have spent a lot of judicial energies diving into dictionaries in order to tell us what being willfully absent actually means. The most recent elaboration on this concept of being willfully absent from a spouse by the Michigan Supreme Court was provided in July. Sadly, I am still not certain I know what that statutory term actually means or what proof is required to show that a surviving spouse was willfully absent.

Case: In re Estate of James Erwin, Sr., Michigan Supreme Court, decided July 31, 2018.

Surviving Spouse Rights: The rights that accrue to a surviving spouse that arise merely by being married to the decedent spouse include: (i) EPIC’s order in which the decedent’s intestate estate will pass to his/her surviving relatives [MCL 700.2101] and (ii) a surviving spouse’s right to a share of the decedent’s intestate estate. [MCL 700.2102.]

Exception to Statutory Rights: An individual is not treated as a surviving spouse if he or she was willfully absent from his or her deceased spouse for the year leading up to the other spouse’s death.[MCL 700.2801(2)(e)((i).] Surrounding the concept of being willfully absent are several questions, however. Is only a physical separation between the spouses is required? Does the concept willful absence also include consideration of the emotional bonds between the spouses or the absence of some other vague ‘connections’ between them? Does the concept willful absence require some showing of an intent by the absent spouse to abandon the marital rights otherwise conferred on that spouse under EPIC?

Facts: Jim and Maggie were married in 1968. In 1973 they purchased a home by the entireties. Starting in 1976 Jim and Maggie stopped living together. Also in 1976 Maggie petitioned the circuit court for and order to compel Jim to pay support to Maggie and their four children. In 2010 Jim and Maggie jointly sued General Motors for breach of contract; in their claim they represented that they were ‘married, and they had remained married at the time of their complaint.’ Apparently Jim and Maggie also claimed in that same litigation that ‘the life of Maggie Erwin… would be irreplaceable for her husband.’ Maggie was also named as the primary beneficiary on Jim’s life insurance policy at the time of his death. When Jim died in 2013 his oldest daughter from his first marriage (Beatrice) filed a petition with the probate court to appoint her as the personal representative of Jim’s estate. Beatrice also sought contribution from Maggie for all the years that Jim paid all the expenses associated with their entireties owned home occupied by Jim.

Probate Court: Without an evidentiary hearing, while relying solely on affidavits from Maggie and others in support of Maggie, the probate judge held that there were indications that Jim and Maggie continued to have contact and an ongoing relationship during their 39 years of separation, and therefore Maggie had not willfully abandoned Jim for purposes of MCL 700.2801(2)(e)(i).

Court of Appeals Decision: This Court affirmed the probate judge’s decision. It found that willfully absent as contemplated in MCL 700.2801(2)(e)(i) is a factual question that may concern more than physical proximity between the spouses. As part of its decision, this Court pointed out:

There was no evidence that the spouses failed to communicate with each other.
Reading the willfully absent provision in context with the desertion and willful neglect provisions (of the same spousal rights forfeiture statute,) it is clear that the willfully absent provision includes some level of intent as well as physical distance.
Physical presence in the marital home is strong evidence that the party remains involved in the marriage to some degree. In re Harris Estate, 151 Mich App 780 (1986).
Spousal relationships are best viewed as factual questions. Tkachik v Mandeville, 487 Mich 38 (2010).
Physical separation is only one piece of evidence that the trial court may consider and weigh when it determines whether one spouse was willfully absent from the other.

Supreme Court’s Decision: In a divided opinion affirming the Court of Appeals’ decision, the Supreme Court held that after reading Black’s Law Dictionary:

In order to be willfully absent from a spouse, the individual must have intended to be completely absent from his/her spouse.
A plain reading of the statute does not require evidence that the individual actually intended to abandon his or her marital rights to be found willfully absent, rather only that he/she intended to be completely absent from the other.
Trial courts should consider whether, under the totality of the circumstances, the surviving spouse was emotionally and physically absent from the decedent for the one year period before death, such that it resulted in a practical end to the marriage.
The statute does not require a showing that an individual intended to abandon his/her marital rights to be found to be willfully absent, only that he/she intended to be completely absent from his/her spouse.
A showing of emotional absence on its own is insufficient to meet the burden of proof required by the statute.
The person who challenges the other individual’s status as a surviving spouse, e. the decedent’s estate representative, carries the burden of proof to show that the survivor was willfully absent. In re Peterson Estate, 315 Mich. App 423 (2016.)
But In re Peterson Estate is overruled to the extent that it held that willfully absent encompasses only a physical absence between the spouses. A showing of emotional absence is also required.
Beatrice’s claim Maggie forfeited her rights after 39 years of separation from Jim failed because Beatrice only presented evidence of their physical separation, but she did not refute the evidence that suggested that Jim and Maggie ‘retained an enduring emotional connection.”

Dissenting Justices: Three dissenting justices disagreed with the majority’s analysis of the statute’s use of the words willfully absent. They felt the majority’s definition of absent was the equivalent of inattentiveness, which did not support its interpretation of willfully absent nor did it encompass a complete emotional absence. Accordingly, the dissenters found that the majority relied upon a state of mental distraction, but which does not carry any emotional aspect to it. One of the dissenters [Viviano] objected to the apparent position of the majority that appeared to require an intent to initiate conduct that he/she knows would result in the termination of the marriage. In short, the dissenters felt that this statutory provision should turn on whether the [surviving] spouse must be physically absent as a result of the unilateral decision by that [surviving] spouse, as opposed to spouses who simply live apart by mutual choice.

What Constitutes Willful Absence: This decision makes it hard to implement the legislature’s exception to surviving spouse’s rights, for those spouses who live apart, but continue to have some connection, however remote, from the other spouse, even over 4 decades. The decedent’s estate representative has the burden of proof, not the survivor. Who moved out, and perhaps why one left the marital home, (fleeing spousal abuse?) now seems to be a critical element of proof. If the husband moves out of the home as the separation’s instigator, but he continues to infrequently speak to the wife over the telephone about their adult children [ e.g. he calls her to tell her, out of courtesy, when he will visit the hospital to visit a new born grandchild- is that proof of an emotional connection between them?], arguably the wife was not been willfully absent when her husband dies and she may continue to assert her rights against her deceased husband’s estate.

Conclusion: Talk about a mess! The probate court issues an order that finds Maggie to be a surviving spouse on the basis of her affidavit and a couple of other supporting affidavits, with no evidentiary hearing to support that self-serving conclusion. After 39 years living apart Maggie continues to be treated as Jim’s surviving spouse for priority of her appointment as personal representative of Jim’s estate, and for intestate succession purposes where Maggie receives the half of Jim’s intestate estate, because Jim’s daughter from his prior marriage cannot show that her father was emotionally absent from her step-mother- but he did manage to physically live apart from her for 39 years, but that 4 decades of living away from her is not enough. And, to complete the circle, our Supreme Court cannot even agree on what it means to be willfully absent from a spouse for a year, using words like physical absence, emotional absence, which apparently means something more than emotional indifference, and the always popular enduring emotional connection. This statute that now requires more than a physical absence between the spouses for a year, to include a required showing of an emotional absence- when one spouse is dead and not able to testify. And implicit in the dissenter’s view, the statute’s willful absence should only apply if the surviving spouse was the party who unilaterally opted to live apart from their spouse. This is one of those cases, sad to say, where the Court engaged in legislative re-writing to achieve its desired outcome. All of which is reason enough to adopt a trust to avoid EPIC’s treatment of a spouse’s intestate estate.