The Michigan Supreme Court is set to review the decision in In re Estate of Von Greiff, where a 2-1 Michigan Court of Appeals panel held that a widow qualified as her deceased husband’s surviving spouse for inheritance purposes, although she had filed for divorce more than a year before his death.

The Court of Appeals ruled the Marquette County Probate Court erroneously found that Anne Jones-Von Greiff did not qualify as the surviving spouse of Hermann Von Greiff for inheritance purposes. Anne filed for divorce from Hermann in 2017. Hermann never returned to the marital home and stipulated that Anne could live there while the divorce was pending. Hermann died in 2018, just before the divorce judgment was signed.

Carla Von Greiff, Hermann’s adult daughter, filed this action after her father’s death, claiming that Anne did not have the right to inherit as his surviving spouse. The probate judge examined MCL 700.2801(2)(e)(i) and held that Anne did not qualify as a surviving spouse because she was “willfully absent” from Hermann for one year or more before his death.

A Court of Appeals majority reversed in a published and binding opinion (Docket No. 347254). MCL 700.2801 “is inapplicable to the period of time consumed by divorce proceedings,” Judge Elizabeth L. Gleicher wrote, joined by Judge Jane E. Markey. “Anne … had a legal right to divorce Hermann …. Had the divorce proceeded a tad more swiftly, she would have been entitled to spousal support and, presumably, a fair share of the marital property. Hermann’s untimely death abated the divorce, but Anne’s participation in a legal divorce process, regardless of its length, did not disqualify her from survivorship status. … Anne survived Hermann as his wife and is entitled to the benefits of that legal status.”

Court of Appeals Judge Michael J. Kelly dissented. “[I]t is not the place of the judiciary to rewrite the plain language of this or any other statute enacted by the Legislature. Therefore, because the statute itself is clear and it makes no provision or exception for spouses going through a divorce, we must apply the statute as it is written, and leave the task of amending the statute to the Legislature.”

Now, the Michigan Supreme Court has agreed to examine whether the Court of Appeals reached the correct conclusion (Docket No. 161535). The high court has ordered that oral argument be scheduled in the case. Citing MCL 700.2801(2)(e)(i) and In re Estate of Erwin, 503 Mich 1 (2018), the justices have instructed that supplemental briefs be filed “addressing whether the period of time after the filing of a complaint for divorce is counted when considering whether a spouse was ‘willfully absent’ from the decedent for more than a year before his or her death.”

The Michigan Supreme Court has also specifically invited the State Bar of Michigan’s Probate and Estate Planning Section to file an amicus brief in the case. In addition, other persons or groups interested in the matter can move for permission to file briefs amicus curiae. According to Lansing attorney Liisa Speaker, who is Recording Secretary for the State Bar of Michigan’s Family Law Section Council, that section plans to write an amicus brief in support of the wife’s position.

The Arguments

In the brief asking the Michigan Supreme Court to review the Court of Appeals decision, the attorneys for Carla maintain the appeals court erred by “rewriting” the plain language of MCL 700.2801(2)(e)(i) and substituting “its own policy decisions” for existing law.

Anne “irrefutably and willfully abandoned Decedent more than one year prior to his death,” the Carla’s attorneys assert. “Consequently, Michigan’s Estates and Protected Individuals Code (EPIC) unequivocally states that she should not receive the benefits of a surviving spouse.”

The Court of Appeals majority “has impermissibly supplanted the Legislature’s language with its own notions and preferences,” the lawyers for Carla argue. “Under the clear language set forth by this State’s Legislature, [Anne] is not the surviving spouse of the Decedent. The panel majority’s circumvention of the plain language of MCL 700.2801 is in violation of its duties to enforce and interpret - not rewrite - statutes promulgated by the Legislature.”

Moreover, Carla’s attorneys contend this case has a “substantial impact” on the areas of Michigan family law and probate law. “First, the [Court of Appeals] panel majority’s ruling creates uncertainty around an otherwise unambiguously written and clearly interpreted statute,” the lawyers assert, citing In re Estate of Erwin. “Second, the ruling will allow for gamesmanship in both divorce and probate proceedings. … Under the panel majority’s decision, a spouse who has been willfully absent for years will be able to create rights in the other’s property simply by filing a complaint for divorce at the end of the other spouse’s life. … In addition to creating a windfall for surviving spouses, this outcome may frustrate decedent spouses’ estate planning intentions ….”

The response brief filed by Anne’s attorneys, however, argues that the Court of Appeals reached the right result. “The Court of Appeals majority correctly applied … In re Erwin Estate by reversing the Probate Court. In re Erwin Estate … mandates that a court determining whether a person is a ‘surviving spouse’ under MCL 700.2801(2)(e) evaluate ‘whether complete physical and emotional absence existed, resulting in an end to the marriage for practical purposes.’ … This is exactly what the Court of Appeals majority did, and what the Probate Court did not.”

Anne’s lawyers further assert the Court of Appeals did not improperly “rewrite” MCL 700.2801. “Rather than rewriting the statute, the Court of Appeals did exactly what the majority did in Erwin. It construed sub-paragraph (2)(e)(i) in the only way it could to leave intact the general scheme reflected in sub-paragraphs (2)(e)(ii) and (iii) of the statute.”

Meanwhile, the attorneys for Anne do not believe the issues presented are significant enough to warrant further scrutiny. “[T]he probable result of this Court’s review will not change the outcome mandated by the Court of Appeals’ majority opinion. In truth, this dispute only arises because of the failure of the court system to resolve or process a divorce action without minor children to judgment within a one-year time period.”

Anne’s attorneys also call “ridiculous” the argument that the Court of Appeals decision will “frustrate” estate plans. “An ‘abandoned spouse’ can protect against the other party to the marriage having a claim against his or her estate by exercising the right to end the marriage ‘legally,’ a right now available in Michigan on demand of either party. Here, there was not an ‘estate plan’ to be frustrated; Hermann Von Greiff died intestate, even though he was perfectly capable of executing a will at any time before his death. The argument that an ‘abandoning’ spouse would receive a ‘windfall’ by receiving ownership of jointly owned assets which would have been divided in a completed divorce action also fails logical analysis.”