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Rodney Dangerfield once joked that “my wife and I sleep in separate rooms, have dinner apart, and take separate vacations - we're doing everything we can to keep our marriage together!”  But what if your wife didn't live with you and still wanted to inherit your property after your death?

The Michigan Supreme Court recently had to decide whether a spouse was still entitled to inherit from her husband's estate or whether her marital rights had been severed by her "willful absence"from him for more than a year before he died.

James and Maggie were married in 1968, had four children, then Maggie moved out in 1976. They never lived together again. James died in 2012, without a will. A child from James' first marriage asked the probate court to determine that Maggie was not his surviving spouse and therefore not his heir.

The Michigan Supreme Court determined that "willfully absent" cannot be defined solely by physical separation since spouse may be separated for a job or military service. Rather, the Court must determine whether a spouse's physical absence brought about a practical end to the marriage or an "emotional absence".

The Court found that in 2010, James and Maggie had joined together as plaintiffs to sue James' employer. They proved that Maggie was entitled to health insurance as part of James' retirement benefits. James made clear in that lawsuit that Maggie was still his wife and that they had an ongoing relationship.

The Court found that James' daughter had the burden of proving that Maggie was "willfully absent," and the daughter's proof (of only physical absence) was not enough to sever Maggie's rights as James' wife.

If you are new to estate planning and not sure where to start, contact us today for a free consultation.