Michigan Estate Planning: Week #3 — Can You Disinherit a Spouse in Michigan? (Elective Share Explained) (Lansing Area Guide)
Across the **Lansing area—including East Lansing, Okemos, Holt, Grand Ledge, DeWitt, St. Johns, and Charlotte—**we frequently hear a version of this question:
“Can I leave my spouse out of my will?”
The short answer is:
👉 Not the way most people think.
Michigan law gives a surviving spouse powerful rights—even if the will says otherwise. And if your estate plan relies only on a will, it may not actually do what you intend.
This is one of the most important (and misunderstood) areas of estate planning in Ingham County, Eaton County, and Clinton County.
The Issue in Plain English
You can absolutely write a will that says:
“I leave nothing to my spouse.”
But under Michigan law:
👉 Your spouse can ignore that instruction and claim a portion anyway.
This is called a spousal election.
Under Michigan’s Estates and Protected Individuals Code (EPIC), a surviving spouse can choose to take:
- what the will provides, or
- a statutory share based on what they would have received if there were no will [caselaw.findlaw.com]
How the Spousal Election Works in Michigan
The law allows a surviving spouse to elect to receive:
👉 1/2 of what they would have received under intestacy (with some adjustments) [caselaw.findlaw.com]
This election must be made within a specific time period and after proper notice is given. [caselaw.findlaw.com]
Translation:
Even if your will says:
“My spouse gets nothing”
Your spouse can still step in and say:
“I elect against the will”
And take their share.
Why This Matters for Lansing-Area Families
This issue comes up often in situations like:
- long-term separations (but no divorce)
- second marriages or blended families
- religious reasons preventing divorce
- strained relationships late in life
In communities like Okemos, Holt, Mason, Delta Township, Eaton Rapids, and Bath Township, we often see clients assume:
👉 “If I write it clearly enough, it will hold.”
But Michigan law overrides intent expressed in a will in order to protect surviving spouses.
The Most Common Mistakes We See
Mistake #1 — Relying on a will alone
This is the biggest issue.
Clients assume:
- “I’ll just say they don’t get anything”
But wills are:
- subject to probate
- subject to spousal election rights
👉 Result: The plan doesn’t work as expected.
Mistake #2 — Assuming “they won’t contest it”
We often hear:
“They’ll do the right thing.”
But real life changes:
- new relationships
- financial pressure
- advice from others
Even if your spouse intends to honor your wishes, there is no guarantee.
Mistake #3 — Forgetting about statutory allowances
Even beyond the elective share, Michigan law provides additional protections for spouses, including:
- homestead allowance
- family allowance
- exempt property allowance
These can apply even if you try to disinherit your spouse entirely.
Mistake #4 — Mixing probate and non-probate assets incorrectly
Some assets:
- pass through probate
- others pass by beneficiary designation or joint ownership
This creates confusion and inconsistency if not coordinated correctly.
👉 (We covered this in Week #1 on TOD/POD accounts)
The Bigger Picture: Probate vs Non-Probate
Here’s where strategy comes in.
Probate assets:
- governed by your will
- subject to spousal election
Non-probate assets:
- may pass outside the will
- but can still be considered in certain calculations or claims
Michigan law specifically includes certain non-probate transfers when evaluating the spouse’s rights to an elective share. [caselaw.findlaw.com]
👉 Translation: You can’t always “work around” the system just by moving assets.
Your Best Options (Real Strategies That Work)
Option #1 — Use a properly structured trust
This is the most common and effective approach.
A trust can:
- avoid probate entirely
- reduce exposure to election against a will
- create clearer control over assets
👉 This is why most attorneys recommend trust-based planning in these situations—not just a will.
Option #2 — Marital agreements (prenup/postnup)
In some cases, spouses can:
- agree in writing
- waive rights to each other’s estate
This can provide clarity and enforceability—but it must be done correctly.
Option #3 — Coordinated estate planning (not piecemeal)
Your plan needs to align:
- trust
- beneficiary designations
- POA authority
- property ownership
👉 If you missed Week #2:
This becomes critical when someone needs to act under a Power of Attorney
Option #4 — Honest planning upfront (the reality approach)
Sometimes the best planning isn’t just legal—it’s practical:
- understanding rights on both sides
- planning around known risks
- avoiding assumptions
When You Should Get Legal Help
If you’re in Lansing, East Lansing, Okemos, Holt, Grand Ledge, DeWitt, St. Johns, or surrounding communities, you should strongly consider professional guidance if:
- you want to limit what a spouse receives
- you are separated but not divorced
- you have children from a prior relationship
- your estate includes real estate or investments
- you want certainty and predictability
Because:
👉 This is one of the easiest areas to get wrong—and one of the hardest to fix after the fact.
Quick Checklist (Lansing Area)
Before assuming your spouse will or won’t inherit:
- Do you know what your spouse is entitled to by law?
- Are your assets mostly probate or non-probate?
- Is your plan relying only on a will?
- Are your beneficiary designations coordinated?
- Have you considered a trust-based plan?
If not, your plan may not work the way you expect.
12 Q&A (Client-Facing)
1) Can I disinherit my spouse in Michigan?
Not fully through a will alone—your spouse can elect against the will. [caselaw.findlaw.com]
2) What is a spousal election?
It allows a surviving spouse to choose a statutory share instead of what the will provides. [caselaw.findlaw.com]
3) How much can a spouse receive?
Generally, up to 1/2 of what they would receive under intestacy, with adjustments. [caselaw.findlaw.com]
4) Can a spouse ignore the will?
Yes—by electing against it under Michigan law. [caselaw.findlaw.com]
5) Does this apply if we are separated?
Yes—if you are still legally married.
6) What about joint accounts or beneficiary designations?
Those may pass outside probate but can still affect the overall analysis.
7) Can I avoid this with a trust?
A trust can reduce the impact, but must be properly designed.
8) Are there other rights besides the elective share?
Yes—homestead, exempt property, and family allowances.
9) Can a prenup or postnup change this?
Yes, in many cases, if properly drafted and executed.
10) What happens if I do nothing?
Your spouse retains full rights under Michigan law.
11) Is this different from other states?
Yes—every state handles spousal rights differently.
12) What is the safest approach?
Use a coordinated estate plan—often involving a trust—not just a will.
🔗 Related Michigan Estate Planning Topics
➡️ Next in the Series
👉 Michigan Estate Planning: Week #4 — Who Actually Inherits in Michigan? (Do Second Cousins Get Anything?)
📍 Local Note
If you’re in the **Greater Lansing area—including Okemos, Holt, Mason, Grand Ledge, DeWitt, St. Johns, Eaton Rapids, or Charlotte—**and you’re thinking about limiting what a spouse receives, this is an area where careful planning upfront makes all the difference.