My father passed away recently. His will was from 1972. It leaves out four children from a previous marriage. It also leaves everything to his mother-in-law at the time, however, he divorced the woman to whom he was married at the time of the execution of the will. My sister and I were born after the will was made. What happens in this scenario?Answer:
This is a very tricky scenario. The inquiry addresses several issues. Michigan law on the issue of omitted children is codified at MCL 700.2302. This statute provides that if a testator fails to provide in his will for his child born after the execution of the will, that child’s share depends on whether the testator had living children at the time and whether any property was given to them in the will. If the testator had living children when he executed the will, and his will devised property or an interest in property to one of those children, an omitted after-born child is entitled to share in the testator’s estate. the share would be equal that of the testator’s then-living children under the will. If there were no children living, the omitted after-born child receives a share in the estate equal in value to that which she would have received had the testator died intestate, unless the will devised substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will. This law is not applied if it appears from the will that the omission was intentional or the testator provided for the omitted after-born child by transfer outside the will and the intent that the transfer was to be a substitute for a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
The testate share is provided for in MCL 700.2103. This law provides that any part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent: (a) The decedent’s descendants by representation; (b) if there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent; (c) if there is no surviving descendant or parent, the descendants of the decedent’s parents or of either of them by representation.
Whether the four children from the previous marriage receive a share depends on whether it appears from the will that the omission was intentional. You were born after the will was made. According to the law, as to your share, normally, you should receive a share equal to the portion of the testator’s then-living children under the will. Your father left the other children out. They could receive an intestate share unless the omission as to them was intentional. Since you were not born at the time the will was made, your argument is that you should receive your intestate share. Statements made and any other circumstances that show your father did not mean to intentionally omit you can be used to support your argument. Your testate share would be dependent on that which would go to any wife at the time of death. If there is no surviving spouse, under MCL 700.2102, your sibling(s) would get an equal share of the entire intestate estate.
Next, there is the issue of the estate property going to the ex-mother-in-law. Under MCL 700.2801 an individual who is divorced from the decedent is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death. Under MCL 700.2807 divorce revokes a disposition or appointment of property made by a divorced individual to his former spouse in a governing instrument and a disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse. Each provision of a governing instrument is given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce. Therefore, the divorce revoked the gift to the mother-in-law. Since that gift failed, MCL 700.2604 provides that the gift becomes part of the residue. It would then be determined who is entitled to the residue.
The analysis above is the same if the child was an after-adopted child as well as an after-born child.