Some people who get married after having written a will sometimes forget to change their wills to account for the new spouse. In other cases, a person may simply leave his or her spouse out of the will for various reasons, intending to disinherit the spouse. Fortunately, under Michigan law, the new spouse and the disinherited spouse have several options to receive part of the deceased spouse’s estate anyway.

One way in which the law protects a spouse from being accidentally or willfully disinherited is through the elective share. If a surviving spouse is left out of a will, the surviving spouse can chose to take a part of the deceased spouse’s estate, called an elective share. The elective share is calculated according to the statute. A spouse can take one half of the property that would have passed to the spouse if the deceased spouse had died without a will, reduced by one half of the value of property the surviving spouse received from the deceased spouse through means other than a will or intestate succession.

If a deceased spouse’s will is invalidated for any reason, and there is no other will to take effect, the surviving spouse can claim an intestate share of the estate. If the deceased spouse did not have children, and has no living parents, the surviving spouse can receive the entire estate. Under the intestacy law, the surviving spouse is entitled to a combination of between $100,000 and $150,000 and between one half and three quarters of the estate depending on whether there are other heirs.

A spouse who marries the deceased spouse after the spouse made a will, and was therefore not named in the will, is known as a pretermitted spouse. A pretermitted spouse is allowed to choose between receiving an elective share, or the share he or she would have received had the deceased died without a will. However, there are some limitations as to what kind of property can be claimed by a pretermitted spouse. For example, the pretermitted spouse cannot take a part of any property that is placed in a trust for the benefit of the children of the deceased who were born after the marriage of the deceased to the pretermitted spouse, and who are not also children of the pretermitted spouse.

Until this year, 2017, widows in Michigan could have taken the equivalent of a life estate in a third of their deceased spouse’s real estate if the deceased spouse did not include the widow in his will. This was known as dower rights, but has since been abolished in Michigan.

Contact an Experienced Estate Planning Attorney

It is important to review and update your estate plan every time you experience a major change in your personal life. This is especially important if you get married or have children. While the law provides various methods in which your immediate family may receive property, if you want to ensure your estate is divided according to your wishes, you need to have a valid will in place. For a consultation to discuss your estate plan, contact Resnick Law, P.C., to talk to the skilled estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

(image courtesy of Frank McKenna)

A domestic asset protection trust is a kind of irrevocable self-settled trust that a person can set up with an independent trustee to administer it. Because the trust is irrevocable, it means that once it is set up, the person creating the trust cannot voluntarily choose to terminate or end the trust. The person setting up the trust cannot be the named the trust’s trustee, although he or she can be a beneficiary and can control some aspects of the trust, such as directing the investment of trust assets.

In this way, the trustee does not have direct control of the assets in the trust, and legally the trust assets do not belong to him or her. Therefore, any increased value in assets that may be subject to division in a divorce as marital assets are protected. Unlike prenuptial agreements, the placing of assets into the trust does not require the other spouse’s consent if the trust is set up at least 30 days before the wedding.

Other than that, the trust acts very much like a prenuptial agreement in that trust assets are not generally divided as part of a divorce. However, it is important for trust settlors to remember that the domestic asset protection trust does not protect the trust property from claims made as part of a requirement to pay child support.

While a person is free to set up a domestic asset protection trust without the permission of a spouse, the person setting up the trust is required to sign an affidavit attesting to certain facts. The person setting up the trust has to attest to the fact that he or she holds full title to the assets being transferred into the trust. A false attestation that allows a person to transfer marital property into a trust without the consent of the other spouse is not likely to support the validity of the trust later on.

A domestic asset protection trust can also be beneficial in other situations, such as protecting assets from creditors. A creditor will nevertheless be able to reach the trust assets if the trust was only set up in anticipation of the creditor’s claim, or while the claim was pending. The creditor can file a fraudulent transfer claim against the trust settlor to void the protections of the trust.

Contact Us for More Information

For more information on Michigan’s laws on domestic asset protection trusts and how you can protect your assets from creditors and from division in a divorce, contact an experienced asset protection attorney at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan. Our experienced attorneys can discuss the legal issues that will arise in forming an asset protection trust, and how these issues may affect you.

(image courtesy of Anne Edgar)