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Is an absent spouse an ‘abandoning’ one?

When a person dies “intestate,” that means they’ve passed away without having made a will. If that happens, their property is doled out to surviving family members according to that state’s “intestate succession law.” This means the state is essentially creating a will for the person according to its idea of how most people would set one up, typically with a surviving spouse first in line, followed by kids, grandkids, parents, siblings and so forth.

But what happens with a spouse who just hasn’t been around in a long time? Usually a spouse who has abandoned the marriage has no right to inherit in this situation, but it’s not always clear what should be considered “abandonment.”

Take a case currently pending before the Michigan Supreme Court. James Erwin Sr. died intestate in 2012, leaving six children from his first marriage and four children from his second marriage. A dispute broke out in his family about whether his second wife, Maggie, was entitled to a surviving spouse’s share of his estate. Though she and James had been legally married for more than 40 years, she hadn’t actually lived with him since 1976. That year, Maggie moved out of the marital home, sought child support and remained separated from James until he died.

One of the kids from James’ first marriage was appointed the personal representative of his estate and asked a family court judge to rule that Maggie wasn’t entitled to a share of the estate because she’d been “willfully absent” from the marriage. (Michigan law disinherits someone who’s been willfully absent for at least a year before his or her spouse dies.)

But the judge ruled that Maggie could still get her share because she and James had stayed in contact and maintained a relationship.

The Michigan Court of Appeals agreed, noting that despite their living apart, James had gone to court to keep Maggie on his employee health plan and she had kept him as her life insurance beneficiary.

Now the Michigan Supreme Court will settle the matter. However, the law does differ from state to state, so if you’ve been living separately from your spouse for a long time, talk to a lawyer to find out whether you might be forfeiting important rights and how you might protect them.


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