Ask the Lawyer-How can I divide my estate legally between children and spouse?

QUESTION: I am in my second marriage and am making a will. I want to leave some of my assets to my current husband, but I’d like the bulk of my estate to go to my children who are both from my first marriage. A friend told me I have to leave half of my estate to my spouse. Is that right?

ANSWER:  You are free to write a will leaving the bulk of your estate to your children, but, under Michigan law, if your husband doesn’t want to accept that division of your estate, he doesn’t have to. He can legally take a bigger share, and create big and expensive problems!

Michigan law gives a surviving spouse the right to take “half the sum of share that would have passed to the spouse had the testator died intestate [without a will], reduced by half 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.” Whew!

Suppose that Mary’s estate, valued at $500,000, includes stocks and bonds valued at $50,000. Mary dies, and in her will leaves the stocks and bonds to her husband, John, and the remainder of her estate to her darling children, Sue and Bob. John decides to exercise his election as the surviving spouse under Michigan law.

To determine what John can get, you first have to determine what share of the property would have gone to John if Mary had died intestate, that is, without a will. Under Michigan law, John would have been entitled to his elective share, plus half of any balance of the intestate estate. John’s elective share is then reduced to half the amount he received from Mary outside of the probate estate. This additional reduction includes property John may have received from Mary other than through her will, for example, through assets where John and Mary were joint owners or where Mary designated John as her beneficiary.

There are additional rules on how property is divided when a surviving spouse exercises his or her right to a spousal share, and the process can quickly become complicated. To avoid these complications, and the cost and bad feelings associated with litigation, it is best to work with an attorney to establish a plan for the smooth transfer of your assets upon your death.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website at

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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