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Is absent spouse an ‘abandoning’ spouse?

When a person dies “intestate,” that means they’ve passed away without ever making a will. If that happens, their property is doled out to surviving family members according to that state’s “intestate succession law.” This means the state is pretty much creating a will for you according to its idea of how most people would set one up, typically with a surviving spouse first in line, followed by kids, grandkids, parents, siblings and so forth.

But what happens with a spouse who just hasn’t been around for a long time? Usually a spouse who’s abandoned the marriage has no right to inherit in this situation. But it’s not always clear what should be considered “abandonment.”

Take a case currently pending before the Michigan Supreme Court. James Erwin Sr. died intestate in 2012, leaving six children from his first marriage and four children from his second marriage. A dispute broke out in his family about whether his second wife, Maggie, was entitled to a surviving spouse’s share of his estate, since while she and James had been legally married for more than 40 years she hadn’t actually lived with him since 1976. That year, Maggie moved out of the marital home, sought child support and remained separated from James until he died.

One of the kids from James’s first marriage was appointed the personal representative of his estate and asked a family court judge to rule that Maggie wasn’t entitled to a share of his estate because she’d been “willfully absent” from the marriage. (Michigan law disinherits someone who’s been willfully absent for at least a year before his or her spouse dies.)

The judge ruled, however, that Maggie could still get her share because she and James had stayed in contact and maintained a relationship.

The Michigan Court of Appeals agreed, noting that despite living apart, James had gone to court to keep Maggie on his employee health plan and she had kept him as her life insurance beneficiary.

Now the state supreme court will decide for sure. But the law does differ from state to state. So if you’ve been living separately from your spouse for a long time, talk to an employment lawyer to find out whether you might be forfeiting important rights and how you might protect them.

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