Surviving Spouse Was Not ‘Willfully Absent’ During Divorce Proceedings

A probate judge erroneously applied MCL 700.2801(2)(e)(i) and, as a result, improperly determined that a widow did not qualify as her husband’s surviving spouse for inheritance purposes, the Michigan Court of Appeals has ruled in In re Estate of Von Greiff (Docket No. 347254)

The defendant, Anne Jones-Von Greiff, was married to the decedent, Hermann Von Greiff. After 15 years of marriage, the defendant filed for divorce on June 1, 2017. Hermann stipulated that Anne could live in the marital home, to which he never returned, while the divorce was pending. Hermann died on June 17, 2018, just before the divorce judgment was signed and slightly more than a year after the parties had separated.

The plaintiff, Carla Von Greiff, is Hermann’s adult daughter. After his death, she filed this action in Marquette County Probate Court seeking to dispossess the defendant of her right to inherit as Hermann’s surviving spouse.

The probate judge ruled that the defendant did not qualify as Hermann’s surviving spouse. In making this determination, the judge relied on MCL 700.2801(2)(e)(i), which says that a “surviving spouse” does not include “(e) An individual who did any of the following for 1 year or more before the death of the deceased person: (i) Was willfully absent from the decedent spouse ….”

The Court of Appeals reversed in a 2-1 published decision.

“That statute is inapplicable to the period of time consumed by divorce proceedings,” Judge Elizabeth L. Gleicher wrote, joined by Judge Jane E. Markey. “Anne Jones-Von Greiff had a legal right to divorce Hermann Von Greiff. 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.”

In a dissenting opinion, Judge Michael J. Kelly focused on the plain language of MCL 700.2801(2)(e)(i).

“If the Legislature so desires, it can expressly state that a divorcing spouse is not disinherited by statute if his or her spouse dies before a final judgment of divorce is entered,” Judge Kelly said. “I encourage our legislators to do so. But they have not done so, and it 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.”

Not ‘Willfully Absent’

On appeal, the Court of Appeals agreed with the defendant’s argument that she was not “willfully absent” within the meaning of MCL 700.2801(2)(e)(i).

“The evidentiary hearing in this case was unnecessary and the probate court’s findings irrelevant, because MCL 700.2801(2)(e) does not apply as a matter of law,” the Court of Appeals wrote. “Anne did not ‘willfully absent’ herself from Hermann; she sought a divorce and, as many divorcing spouses do, elected to live separately while the matter made its way through the circuit court. Furthermore, Hermann formally stipulated to that living arrangement. Considering a combination of common sense, the common law, and a venerable canon of statutory construction: expressio unius est exclusio alterius, it is clear that the Legislature did not intend to disinherit a spouse whose divorce was in progress but not yet finalized when the other spouse dies.”

Citing the Michigan Supreme Court’s decision in In re Estate of Erwin, 503 Mich 1 (2018), the Court of Appeals said MCL 700.2801(e) generally stands for the proposition that when a spouse decides to informally dissolve a marriage by neglecting or deserting a partner or by withdrawing from that partner both physically and emotionally, the departing spouse loses the right to inherit from the spouse left behind.

“These provisions encapsulate readily understood equitable principles,” the Court of Appeals wrote. “A spouse who contrives an extralegal remedy for a failed marriage by desertion, neglect, or abandonment should not be afforded the rights available to those who follow the rules. Similarly, a spouse loses his or her right to survivorship status by willful physical and emotional absence, thereby bringing about ‘a practical end to the marriage,’ … rather than a legal end. As highlighted in Erwin, subsections (2)(e)(i), (ii) and (iii) illustrate intentional acts that destroy a marriage and leave one partner legally adrift. Laws disinheriting the selfish partners ‘are premised on moral policy, eclipsing the usual desiderata of forced-share laws.’”

However, “[d]ivorce is different,” the Court of Appeals explained, noting the divorce was not finalized when Hermann died. “As best we can tell, no one deliberately delayed the process; sometimes, divorces take more time than anticipated or hoped. The point is that by filing for divorce, Anne sought to bring about a legal end to her marriage. She did not intend to abandon or desert Hermann by consigning him to a marriage with none of the fundamental attributes of a marriage. Rather, Anne intended to exercise her legal right to seek a divorce decree, and to enforce the rights due her as a divorcing spouse. Those rights potentially included spousal support, and certainly included an equitable division of marital property. Anne’s invocation of legal process allowed Hermann to protect his property rights, too.”

According to the Court of Appeals, “common sense” dictates that a spouse cannot be disinherited on the ground of “willful absence” if a divorce is pending at the time the other spouse dies. “Many spouses separate during divorce proceedings. Often, one leaves the other, physically and emotionally. If MCL 700.2801(2)(e)(i) is enforceable based on the time a divorce is pending, delays and gamesmanship are inevitable, particularly when the spouses are elderly or one is ill. … It is nonsensical to believe that the Legislature intended that pure serendipity could dictate whether Anne was disinherited.”

In addition, a 2017 amendment to MCL 700.2801 provided further support for this conclusion, the Court of Appeals said. By adding MCL 700.2801(3), “the Legislature carved out a new exception to the status of surviving spouse,” the Court of Appeals noted. “A spouse who is a ‘party’ to a divorce proceeding at the time of the other spouse’s death may not have a say in the deceased’s funeral arrangements. That’s it - funeral arrangements. The Legislature did not identify ‘an individual who is a party to a divorce or annulment proceeding with the decedent at the time of the decedent’s death’ as otherwise excluded from the status of a surviving spouse.”

Based on the foregoing, as matter of law “Anne survived Hermann as his wife and is entitled to the benefits of that legal status,” the Court of Appeals concluded.