M Civ JI 175.12 Omission of Spouse in Will Made Prior to Marriage Where There Are Transfers Made in Lieu of Will Provision

The law provides that if a decedent fails to provide for [ his / her ] spouse to whom [ he / she ] was married after the execution of decedent’s will, the spouse shall receive the same share of the decedent’s estate that [ he / she ] would have received if the decedent died without a will, unless the decedent provided for [ his / her ] spouse by transfers of property that were outside the will, which the decedent intended to be instead of provisions for [ his / her ] spouse in [ his / her ] will.

The petitioner has the burden of proving that [ name of decedent ] failed to provide for [ name of spouse ] by transfer of property outside the will, or that [ name of decedent ] did not intend [ that transfer / those transfers ] to be instead of provisions in [ his / her ] will.

You must determine whether the decedent provided for [ his / her ] spouse by transfer of property outside the will and whether decedent intended [ that transfer / those transfers ] to be instead of provisions in [ his / her ] will. In making this determination, you may take into consideration all of the surrounding circumstances.

Note on Use

Caution: This instruction should be used only for estates of decedents dying before April 1, 2000, the effective date of the Estates and Protected Individuals Code (EPIC). MCL 700.8101(1), (2)(a). See the instructions in chapter 178 for estates of decedents dying on or after April 1, 2000.

For estates of decedents dying before April 1, 2000, this instruction should not be used if the court determines from the will itself that the omission of the spouse was intentional. MCL 700.126(1).

Comment

See MCL 700.126(1). See In re Cole Estate, 120 Mich App 539; 328 NW2d 76 (1982).

History

M Civ JI 175.12 was added February 1986.​ Amended May 2016.