MSC: Wife Who Filed For Divorce Is ‘Surviving Spouse’ For Inheritance Purposes

A widow who filed for divorce more than one year before her husband’s death qualifies as his surviving spouse for inheritance purposes, the Michigan Supreme Court has ruled.

Anne Von Greiff filed for divorce from Hermann Von Greiff in 2017. Hermann never returned to the marital home and agreed 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 surviving adult daughter, then filed this action, arguing that Anne did not have the right to inherit as Hermann’s surviving spouse because, according to MCL 700.2801(2)(e)(i), she was “willfully absent” from him for one year or more before his death. The Marquette County Probate Court agreed with Carla and ruled that Anne did not qualify as Hermann’s surviving spouse.

The Court of Appeals reversed in a 2-1 published opinion (Docket No. 347254). Carla appealed to the Michigan Supreme Court.

In July 2021, the high court agreed to review whether the Court of Appeals reached the correct conclusion and ordered that oral arguments be scheduled. The justices, citing MCL 700.2801(2)(e)(i) and In re Estate of Erwin, 503 Mich 1 (2018), instructed that 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 justices also invited the State Bar of Michigan’s Probate and Estate Planning Section to file an amicus brief. In addition, the State Bar of Michigan’s Family Law Section Council submitted an amicus brief in support of the wife’s position. (For details on the arguments presented, visit the Speaker Law Blog.)

After hearing oral arguments in the case, the Michigan Supreme Court ruled in In re Estate of Von Greiff  (Docket No. 161535), that Anne qualified as Hermann’s surviving spouse. Justice Megan K. Cavanagh wrote the majority opinion, joined by Chief Justice Bridget M. McCormack and Justices Richard H. Bernstein, Elizabeth T. Clement and Elizabeth M. Welch.

Although the justices said there is “no statutory basis for a categorical rule that filing for divorce precludes a finding of willful absence,” they emphasized that “the filing of a divorce action and communications between spouses through their attorneys while in the process of obtaining a divorce are strong evidence that the spouse was not absent, and we hold that the filing of a divorce action creates a presumption that the spouse was not willfully absent.”

According to the Michigan Supreme Court, “If the spousal communications during the divorce proceedings are consistent and made in connection with the legal termination of the marriage, then the spouse is not willfully absent and is entitled to the benefits of a surviving spouse.”

Justice Brian K. Zahra and Justice David F. Viviano dissented.

 ‘Strong Evidence’

In its analysis, the Michigan Supreme Court explained that, pursuant to the Estates and Protected Individuals Code (EPIC), MCL 700.1101, et seq., surviving spouses have certain rights upon the death of their spouse, including the right to receive a share of the estate.

“But a spouse can lose these rights if they are ‘willfully absent from the decedent spouse’ for more than a year before that spouse’s death,” the justices observed, pointing to MCL 700.2801(2)(e)(i). “This reflects the legislative intent that one should not receive the benefits of a ‘surviving spouse’ if one has engaged in ‘intentional acts that bring about a situation of divorce in practice, even when the legal marriage has not been formally dissolved.’”

Here, the question was whether Anne – the person who filed for divorce but had not yet obtained that divorce when Hermann died – was “willfully absent” and ineligible for benefits as a “surviving spouse,” the high court noted.

The Court of Appeals had ruled that, as a matter of law, a person cannot be considered “willfully absent” under MCL 700.2801(2)(e)(i) while a divorce proceeding is ongoing, the Michigan Supreme Court said. “We disagree; there is no statutory basis for a categorical rule that filing for divorce precludes a finding of willful absence.”

According to the justices, the divorce filing and communications between the parties through their lawyers during divorce proceedings are “strong evidence” that a spouse was not absent.

“[W]e hold that the filing of a divorce action creates a presumption that the spouse was not willfully absent. If the spousal communications during the divorce proceedings are consistent and made in connection with the legal termination of the marriage, then the spouse is not willfully absent and is entitled to the benefits of a surviving spouse.”

In this case, Carla failed to rebut the presumption that Anne was not willfully absent, the Michigan Supreme Court said, especially given that Anne had “promptly” filed for divorce and communicated continuously with the decedent through her attorney. “Accordingly, we affirm the judgment of the Court of Appeals on different grounds.”

Two Dissenters

Justice Zahra dissented, joined by Justice Viviano. “Not only is the majority opinion’s new test inconsistent with a fair and reasonable reading of the holding and logic of Erwin,” he said, “but it also generates a per se rule that is unsupported either by the text of MCL 700.2801(2)(e)(i) or by Erwin.”

Anne was physically absent for 13 months before Hermann’s death and communicated with him only through her lawyer, Justice Zahra pointed out. This behavior, he said, constituted a “complete physical and emotional absence” that resulted in the “practical end” of the marriage.

Justice Zahra also objected to the majority’s classification of attorney-driven communications as sufficient to establish a lack of willful absence under MCL 700.2801(2)(e)(i). He emphasized that attorney communications are not equal to spousal communications and, as a result, do not automatically negate a finding of complete emotional absence.

Justice Viviano also dissented, explaining that while he agreed with Justice Zahra, he wrote separately to “make a few additional observations.” In particular, he noted the majority opinion created a presumption that when a divorce action is filed and one party dies, the surviving spouse is not “willfully absent.” This, he said, results in a brand-new “totality of the circumstances test” to determine whether indirect communications between attorneys are sufficient to negate a finding of willful absence.

“[I]t would be far better for the law to retain a flawed interpretation than to tack another new, even more flawed interpretation onto it,” Justice Viviano said.