HEIRSHIP AND SPOUSAL AND FAMILY RIGHTS UNDER EPIC

This article is based upon the notes of a speech given by the author at the 1999 ICLE Probate and Estate Planning Seminar. Permission by ICLE for the use of this material is gratefully acknowledged. RPC (The Revised Probate Code of 1979, M.C.L. 700.1 through 700.993; MSA 27.5001 through 27.5993) was a blend of the Probate Code of 1939 and the Uniform Probate Code as it existed in 1978. Hence much of  EPIC (Estates and Protected Individuals Code, M.C.L. 700.1101 through 700.8102; MSA 27.11101 through 27.18102) will appear familiar since its  provisions are based in large measure upon the Uniform Probate Code as it existed in 1998. In small measure EPIC provisions covered by this Article have been modified by the “Technical Changes and Corrections Act”, Act 54 of the Public Acts of 2000.

  SPOUSAL INTESTATE SHARE

Under RPC 105 if there are children surviving the decedent, then for the combinations of circumstances thought by the drafters to be significant there is  a unique amount of the share for the surviving spouse. Under the UPC, as it currently exists, there are more combinations of circumstances that the UPC drafters believed could give rise in the legislatures to different results. In the Michigan legislature all the UPC combinations were set forth in EPIC but in three sets of circumstances  the same result is reached: $150,000 plus ½ of the residue. Comparing RPC 105 with EPIC 2102(1) we find under subsection (a) of both codes the surviving spouse gets the whole estate if there are no issue and no parents.  Under of EPIC 2102(1) (c) the surviving spouse’s share is set at $150,000 plus 3/4 of the residue if there are no descendants but there are parents. Under RPC 105(c), under the same circumstances,  the surviving spouse gets $60,0000 reduced by any amount received under the will and ½ of the residue. This is essentially the same result reached if the decedent died survived by children and a spouse. The upping of the fraction under EPIC presumably reflects the greater emphasis given by the legislature to the economic nature of the marital institution and the comparative devaluation of the continuing relationships with parents. Below is a grid for  determining shares under EPIC 2102(1) where the intestate dies with a spouse and descendants (not merely children):

 

	Decedent has descendants by Spouse only	Decedent has descendants by Spouse and another	Decedent has descendants but not by Spouse
Spouse has descendants only by Decedent	150,000 +       ½ Residue  (b)	150,000 +      ½ Residue    (e)	Null set
Spouse has descendants by Decedent and another	150,000 +          ½ Residue              (d)	150,000 +            ½ Residue                (e)	Null set
Spouse has descendants but not by Decedent	Null set	Null set	100,000 +             ½ Res.                 (f)

These dollar  amounts will be adjusted by a COLA for deaths  after December 31,2000.  See EPIC 1210.  These adjustments will be certified by the Michigan  Department of Treasury and be rounded to the nearest $1,000.  

INTESTATE SHARES OF PERSONS OTHER THAN SPOUSES

The intestate shares aside from the surviving spouse’s shares are controlled by RPC 106 and EPIC 2103 and 2106. The only major changes here are with regards to the aggregation of all issue of the same degree of kindred and expansion of the class of collaterals. Relative to the aggregation of issue of the same degree of kindred consider the following example:

 D (the intestate)

X (predeceased)                Y (predeceased)                 Z (surviving)

X1     X2       X3                            Y1       Y2                                   Z

Under RPC 106 the grandchildren  X1, X2, X3 each get 1/9 , Y1 and Y2 each get 1/6 and Z gets 1/3. This is the RPC rule because not all of the issue are of the same degree of kinship to D; Z being a surviving child and the balance are grandchildren. This is the classic “by right of representation” notion of heirship,  however if Z had also predeceased D, then  all of the grandchildren would have gotten the same 1/6 share. This is the special RPC “per capita” inside of the  “per stirpes” rule for issue if all of them are of the same degree of kinship.

 EPIC has a broader “per capita” inside of the “per stirpes” rule that calls for division at the level of living issue closest to the decedent (or deceased issue with living issue):

        ·   Under EPIC Z will still get 1/3, but the grandchildren, X1, X2, X3, Y1 and Y2 will receive 2/15 (1/5 x 2/3).

        ·   Under EPIC if Y survived but Z and X predeceased D, Y would get 1/3 and the grandchildren X1, X2, X3 and Z1 would get each 1/6 ( 1/4 x 2/3).

                    ·   If X survived but Y and Z did not, the grandchildren Y1, Y2 and Z1 would              each get 2/9 (1/3 x 2/3)

While the “per capita” inside the “per stirpes” rule might be thought of as a corollary of the “grandparents love all grandchildren equally” rule; under EPIC 2106 the rule applies in various forms not only to issue but also to collaterals. Perhaps aunts love all nieces and nephews equally. 

EXPANSION OF CLASS OF COLLATERALS

Situation 1: Rex, Julia, Milton and Irving are siblings. At Rex’s death Julia (who is of the 2^nd degree of kinship) is still alive but Irving and Milton are already dead. Milton’s two children (who are of the 3^rd degree of kinship) are living,  but Irving’s only child, a son, is also dead, however the son’s  daughter (who is of the 4^th degree of kinship) is living. Under RPC 106 (c) Julia and Milton’s two children share the estate , ½ to Julia and 1/4 to each of Milton’s children. The orphaned grandniece takes nothing. This is a result of the foreshortened stirpital rule under RPC 106 (c) which allows brothers and sisters and their children but no one of a more remote generation to take. In this regard see In Re Estate of Chapotan, 104 Mich 11 (1895) and In Re Lake Estate, 128 Mich App 98, 339 N.W.2d 703 (1983), which strangely does not cite Chapotan, for the proposition that the statute and its predecessor are to be interpreted as written. EPIC 2103(c) solves this by allowing all descendants of parents to take by representation. Thus the orphaned grand niece will take 1/3rd along with Julia and Milton’s children.

Situation 2: Harry and David are close siblings and are also close to their paternal cousin Larry who has never had any children. No grandparents of Larry are living and he has no known heirs on his maternal side.  Their fathers are both dead and neither is close to Aunt Betsy, who was their fathers’ sister.  Larry has a stroke and did not have the foresight to make a will which would have left everything to Harry and David who have taken care of him during his last illness.  Larry finally dies.  Under the RPC 106(d) dealing with collaterals at the level of grandparents, Betsy gets it all, since she is the closer degree of kinship- 3rd degree, and Harry and David are excluded since they are of the 4^th degree of kinship. Persons of closer degree of kinship trump the rights of those more removed. Under EPIC 2103(d) Harry and David will each get one-half the estate and Betsy the other one-half. Harry, David and Betsy are all issue of the paternal grandparents and take by right of representation through them. This example assumes that there are no issue of maternal grandparents of Larry; if so ½ the estate will go to them and the above fractions will operate only on the half of the estate passing through the paternal line.  

Note that under RPC with its foreshortened stirpital distribution scheme it is possible to get a mix of both Situation 1 and Situation 2 if no brothers or sisters or their children (nephews and nieces) survive but grandnieces or grandnephews do. RPC 106(c) will not apply but RPC 106(d) will and conceivably grandnieces and grandnephews will take with cousins. This situation will not obtain with EPIC 2103(c) since any descendants of a parent will trump the rights of persons related no closer than through grandparents.

SURVIVORSHIP BY 120 HOURS

Under RPC 107 if there is a roughly simultaneous death, the heir is presumed to have failed to survive.  This presumption presumably falls in the face of evidence that it is more likely than not that the heir survived.  Under EPIC 2104 the stakes are raised: now the later dying heir’s estate takers  must establish survivorship by the heir by 120 hours by clear and convincing evidence.  Interestingly, the whole 120 hours survivorship section does not apply if it results in the state taking as an heir.  No such provision presently obtains in the RPC.

CHILDREN BORN OUT OF WEDLOCK

We will presumably still have the usual sets of fact problems associated with the determinations of heirship between a father and his children born out of wedlock.  EPIC 2114(1) closely follows the rules for making such determinations which are set out in  RPC 111. The Technical Changes and Corrections Act adds subparagraph (v) which provides that the child may be determined to be the heir of his or her father by the court using the standards and procedures established under the Paternity Act, MCL 722.711 et seq, even though an order of filiation has not been already entered

SPOUSAL AND FAMILY RIGHTS

RPC 282, 283 and 284 dealing with the surviving spouse’s right to elect against the will of the deceased spouse appear to have remained unchanged in  EPIC 2202,2203 and 2204 except for the lengthening of the time for election from 60 days to 63 days (consistent with the UPC approach of running time limits in multiples of weeks). Dower rights have been continued into EPIC and the widow’s rights to choose in an intestate estate an intestate share or dower was dropped from EPIC but added back in by the Technical Changes Act. In the author’s 34 years of practicing law, the bulk of it in probate practice, not  one widow has been known to have  elected  dower; however 2 attendees at the 1999 ICLE Probate and Estate Planning Seminar reported  having elected dower for a surviving wife when the deceased husband’s estate was heavily freighted with Federal Tax liens since dower rights are superior to Federal tax liens.                                                                             

EPIC does not continue the right of occupancy for a year of a home to the surviving spouse found at RPC 288. 

The “homestead allowance” of $10,000 in RPC 285 has been increased in EPIC 2402 to $15,000, subject to COLA increases.  It used to be charged against a spouse’s or minor child’s intestate share, but no longer, unless the Will provides to the contrary.  The homestead allowance under EPIC will be available  if there is no surviving spouse not only to minor children, but also to a “dependent child”. Under the definition of “child”at EPIC 1103(e) this will not include a step child, however it could include an adult child that was still supported by the deceased parent. 

The “exempt property” in RPC 286 has been increased from $3,500 to $10,000 in EPIC 2404, again subject to COLA, and now includes automobiles.  Under RPC if there was no surviving spouse this exempt property right was only available to minor children. Now it is available to children jointly whether or not they are minors.  This also is in addition to the share of the spouse or the children under the Will or intestacy unless the Will otherwise provides.

Family allowances under EPIC 2403 retained much of the same law as  the old RPC 287, except that again now one can provide by Will for any such allowances to be paid from or charged against the spousal or children’s share. Support by way of a family allowance is now also available under EPIC for “children of the decedent or another who were in fact being supported by the decedent”. Presumably this would include a step or foster child even though specifically omitted from the definition of “child” under EPIC 1103(e). The allowance may be paid in a lump sum as well.

PRETERMITTED SPOUSES

RPC 126 was divided into two subsections.  The first subsection describes what happens if the Testator makes the Will before marrying.  Under that circumstance, the surviving spouse gets an intestate share UNLESS: (1) it appears from the Will that the omission was intentional; or (2) the Testator provided for the surviving spouse outside the Will and there was intent that such provision was in lieu of taking under the Will as shown by declarations [i.e., parole evidence and hearsay], by the amount of the transfers, or by other evidence. Under EPIC 2301(1) this rule still obtains but the available assets for selecting the intestate share do not include devises to the Testator’s children or more remote issue that are not children or more remote issue of the surviving spouse.  This carves out an enormous exception as in the case of serial marriages where the deceased spouse leaves  a will predating the last marriage providing only for his or her children of an earlier marriage. The formerly more favorable pretermitted spouse’s case is going to be much closer under EPIC  to the less favorable right to elect against a will.

The second subsection of RPC 126 dealt with the “Case of the Man who Forgot he was Married”. Apparently the legislature believed that it was so unlikely that a person would forget to provide for his/her spouse after marriage that it did not include it in EPIC 2301.  

PRETERMITTED CHILDREN

The new §2302 of EPIC changes the old rules under RPC 127 which created alternate burdens of proof.  Under RPC, if the child is born after the will, he or she takes a full intestate share unless it is apparent from the Will that the Testator’s intention was not to provide for such child.  In other words, the burden of proof is on the other children to have the later born child excluded.  If the child is born before the Will was made, then the burden of proof is on the child to show the omission was not intentional, but was made by mistake or accident.

Now under EPIC §2302 the child gets (a) an intestate share only if there are no other children at the time the will is executed, but will not take that share if the other parent survives the deceased testator and receives all or substantially all of the estate; or (b)an equal share with the other children if there were other children when the deceased executed the will and they receive property under the will. In both cases the child will receive the share  unless it appears that the omission was intentional or it appears from other provisions outside the will that those transfers are a substitute for the will and that substitute is shown by the Testator’s statements or is reasonably inferred from the amount of the transfers or other evidence.  Thus the burden of proof is consistently on those that seek to defeat the pretermitted child’s claim, if he or she has one.

RPC 127 (2) dealing with a mistake or accident in omitting the earlier born child provision is not carried forward into EPIC 2302 except under subsection (3) where there is a provision for the child that the testator mistakenly believes to be dead. This child gets the same share that he or she would take as an omitted after-born child.

  IN CONCLUSION

Particularly with regards to the subjects of this article there will be enough that is new under EPIC that the probate practitioner accustomed to RPC should not feel comfortable that what she or he thought was the substantive law will still be the law. It is to be expected that we are all in for a trip up the learning curve. EPIC does not and cannot answer every question of probate law. It is doubtless solace to us all that where EPIC does not provide the answer we will not only have our own Michigan jurisprudence to look to, but also that of the other UPC states.

 © John A. Scott, Traverse City, MI