Often times in second marriages, a spouse will leave out his or her current spouse to instead leave everything to adult children from the prior marriage. The children from the prior marriage are often times the ones encouraging this action. In such cases, the second spouse who was left out of the will can file for his or her share of the estate.
This is accomplished by making an election for the spousal shares with the probate court. The will itself is not invalid. The surviving spouse simply is electing to take his or her share of the spouse's estate provided by law. Additionally, the surviving spouse is entitled to a homestead allowance, family allowance and exempt property.
There are many factors, however, that can affect the spousal election. Elective shares and spousal allowances may be waived by marital agreements such as a prenuptial agreement. Additionally, the amount that the surviving spouse receives will be offset by any amount of life insurance proceeds or other accounts received by the surviving spouse. Furthermore, an elective share requires filing a probate estate. You should seek legal representation to get a full understanding of Michigan's Spousal Elective Share and Spousal Allowances statutes.
