Spousal Elective Share Requirements in Michigan

At a glance

Requirements one by one

Eligible spouse and right holder

The election against a will applies to the surviving spouse of a decedent who died domiciled in Michigan. The right must be exercised while the spouse is alive. A legally incapacitated spouse can exercise it only through an order in the court handling a proceeding about that person's property, after the court finds the election necessary for adequate lifetime support.

Michigan's definition excludes a divorced or annulled former spouse and the additional people listed in § 700.2801, including a person subject to an order terminating all marital-property rights, a person living in a bigamous relationship at death, and a person who met the one-year willful-absence, desertion, or legally required nonsupport rule. Section 700.2803 separately forfeits the elective share for the listed killer or convicted abuser, neglector, or exploiter.

Share amount and the intestate-share starting point

Michigan does not use a flat estate percentage or a marriage-length schedule. First calculate the spouse's hypothetical intestate share under § 700.2102, then take one-half, then subtract one-half of the property derived from the decedent outside testate or intestate succession.

For a decedent who dies in 2026, the Treasury-adjusted intestate floors are $301,000 where the printed statute says $150,000 and $201,000 where it says $100,000. The hypothetical intestate share is:

• the whole intestate estate if neither a descendant nor parent survives;
• $301,000 plus three-fourths of the balance if no descendant survives but a parent does;
• $301,000 plus one-half of the balance in the shared-descendant and partly blended-family branches; or
• $201,000 plus one-half of the balance if none of the decedent's descendants is also the spouse's descendant.

For example, if the hypothetical intestate share is $500,000 and the spouse received $100,000 of qualifying derived property, the calculation is $500,000 × 1/2 − $100,000 × 1/2, or $200,000.

Probate base, spouse-derived property, and valuation

The election starts with the spouse's hypothetical intestate share of the probate estate. Michigan does not add nonprobate transfers to other recipients into an augmented estate. Instead, it reduces the spouse's amount for property the spouse already derived from the decedent.

The statutory credit includes a transfer within two years before death to the extent subject to federal gift or estate tax, a transfer subject to a retained power that makes it federally estate-taxable, and a death transfer through joint ownership, tenancy by the entireties, an insurance-beneficiary designation, or a similar means. The probate inventory uses fair market value at death. Part 2 states no separate valuation date or discount rule for the derived-property credit and creates no contribution claim against a nonprobate recipient who is not the spouse.

Deadline, late relief, and filing procedure

The spouse files a written election with the court. The deadline is 63 days after the later of the date for presentment of claims or service of the inventory on the spouse. The personal representative ordinarily must notify the spouse of the election right and deadline within 28 days after appointment, and proof is filed with the court. Filing the election itself may replace that notice and proof.

If the deadline passes, the spouse is conclusively presumed to abide by the will, subject to two narrow routes. Before the estate closes, the spouse may petition after notice to interested persons, and the court may allow a late election because of estate litigation, later claims, or other cause. After the principal administration closes, a good-cause election can reach only newly discovered assets in the later administration and must occur before that administration closes. Part 2 states no separate withdrawal route.

Waiver and additional allowances

The spouse may waive all or part of the election before or after marriage in a written contract, agreement, or waiver signed after fair disclosure. Unless the document says otherwise, an "all rights" waiver or the specified complete property settlement also waives the homestead allowance, election, exempt property, and family allowance and has the other renunciation effects stated in § 700.2205.

Without a controlling waiver or contrary will term, the allowances are additional to the elective share. For a 2026 death, the adjusted homestead allowance is $30,000, exempt property is up to $20,000 above security interests, and the personal representative may determine a family allowance up to $36,000. The court may grant relief that includes a different family allowance, and the reasonable allowance may continue no longer than one year when the estate cannot pay allowed claims.

What trips people up

• Half the intestate share is not half the estate. The family structure and annually adjusted floor must be calculated before the spouse's one-half is taken.
• Nonprobate property works as a spouse credit, not an augmented base. The statute subtracts half of specified property the spouse received; it does not generally pull other recipients' nonprobate assets into the estate.
• Both 63-day triggers matter. Use the later of the claims-presentment date and inventory-service date, not whichever date appears first in the file.
• The old dower option is transitional. Section 700.2202 preserves it only for a qualifying widow when the decedent died before the 2017 amendment took effect, not for a current death.

Common questions

Does receiving life insurance eliminate the election? Not automatically. An insurance-beneficiary transfer is property derived from the decedent, so one-half of its value reduces the calculated share.

Can an incapacitated spouse's agent simply sign the election? Section 700.2202 does not give a free-standing agent route. It requires a court order and an adequate-support finding for a legally incapacitated person.

Does asking to probate the will waive the election? No. Section 700.2204 says petitioning to admit the will, failing to object or consenting to probate, or accepting appointment as personal representative does not prevent the election.

Statutes and sources

• MCL § 700.2202 — written election, calculation, lifetime requirement, two deadline triggers, notice substitution, incapacity, domicile, and spouse-derived transfers. Official EPIC Part 2 PDF (accessed 2026-08-02).
• MCL § 700.2102 — family-structure intestate-share branches and annual adjustment. Official EPIC Part 1 PDF (accessed 2026-08-02).
• Michigan Department of Treasury 2026 EPIC cost-of-living notice — current $301,000 and $201,000 intestate floors and current allowance amounts. Official Treasury notice (accessed 2026-08-02).
• MCL §§ 700.2203-700.2204 — untimely-election presumption, late-election exceptions, and actions that do not prevent election. Official EPIC Part 2 PDF (accessed 2026-08-02).
• MCL § 700.2205 — signed waiver after fair disclosure and default effect of broad waiver language. Official EPIC Part 2 PDF (accessed 2026-08-02).
• MCL §§ 700.2801, 700.2803 — surviving-spouse exclusions and forfeiture. Official EPIC Part 8 PDF (accessed 2026-08-02).
• MCL §§ 700.2402-700.2405 — homestead allowance, family allowance, exempt property, priorities, and relationship to the elective share. Official EPIC Part 4 PDF (accessed 2026-08-02).
• MCL § 700.3705 — notice of the election right and deadline. Official § 700.3705 text (accessed 2026-08-02).
• MCL § 700.3706 — death-date inventory valuation and delivery. Official § 700.3706 text (accessed 2026-08-02).