Does a spouse have to leave his wife 50 of the assets?

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Does a spouse have to leave his wife 50 of the assets?

My sister and her husband are going through some very tough times. The current wills leave each other almost everything. Now he is talking about leaving her only 10 and the other 90 to one of his daughters. The house was his when she moved in 10 years ago. She put a lot of money into the house with money left to her by our mom. They have been married for 3 years and she has nursed him through stomach cancer and some other issues. As long as they remain married, can he legally do that to her. We think it might be his meds. He is yelling and swearing at her a lot

Asked on January 8, 2018 under Family Law, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

In Michigan, any spouse whose spouse dies is guaranted an "elective share" of between (generally) 1/4 and 1/2 of the deceased spouse's "estate." The calculation is more complex than in many other states with similar laws, so it's difficult or impossible to be more precise than that at this point.
Alternately, a surviving wife (but not husband--the state is sexist that way) could instead choose to take "dower" which will give her 1/3 the estate. So since she'd take the elective share if it's more than 1/2 the estate, she is essentially guaranteed at least 1/3 the *estate*.
However, we emphasize the word "estate" because it is a critical concept in this discussion. Not all property of his will be included in his estate; any property that goes directly to another person, the main types of which are--
* Real estate owned jointly with someone as "Joint Tenants with Right of Survivorship"
* Joint bank or brokerage, etc. accounts, or such accounts which are transfer on death (TOD) or payable on death (POD)
* Life insurance going to a named beneficiary
--is NOT part of the estate. It goes to whomever the joint tenant, joint account holder, or beneficiary is and the surviving wife does not any piece of it.
Also, any property in an "inter vivos" trust, or trust created pre-death (not by the will) is also not part of the estate, and she would get no part of it.
And anything with a mortgage or other secured financing (e.g. a HELOC; or the typical car financing arrangement) must have the loan paid off or the lender/financing company gets the asset.
So depending on what they and he own and how, she may get far less than it at first appears.
If he is mentally incompetent when he creates a new will, due to the disease or medication (e.g. any painkillers, especially opiods), it may be possible to invalidate or void that will on the basis of incompetency: only competent people can create enforceable wills.
It would be worth it for her to consult with a probate attorney to discuss all the issues and complexities of this situation, as well as her option to challege a will if necessary.


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