In Lovett v. Peterson, the Michigan Court of Appeals upheld the probate court’s judgment that a wife was physically separated from her husband for several years while he lived with his mistress but was not “willfully absent” according to the testate spousal election statute. After his death, his wife elected against the will, which would afford her half of the estate. Soon after, the husband’s daughter petitioned the probate court for a declaration that his wife was not the surviving spouse, being willfully absent from him for more than a year before he died. His wife, however, never acted with specific intent to no longer be a part of the marriage, making her not willfully absent under the statute.
See Jason Byrne, COA Holds that a Spouse Must Be Willfully and Physical Absent from Her Decedent Spouse for at Least a Year Before Death To Be Disqualified from Electing Against the Decedent’s Will, Warner Norcross & Judd LLP, May 27, 2016.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.
