Tkachik v Mandeville, ___Mich App___(2009), #280879, 2/5/09
Return to Probate Review MenuDefendant and decedent, Janet Mandeville, married in 1975 and remained married until decedent's death. Defendant and decedent acquired two parcels of real estate during the marriage and held such property as tenants by the entireties. Decedent died on July 13, 2002. Defendant had been absent and had infrequent contact with decedent for eighteen months prior to decedent's death. Decedent and defendant never sought a divorce or separation, nor did decedent file an action for family support based upon spousal abandonment. According to an affidavit of decedent's close friend, neither decedent nor defendant considered their marriage to be terminated. Before her death, decedent executed a trust and will that excluded her husband. The will appointed plaintiff, Susan Tkachik, as personal representative.
About five months after decedent's death, defendant filed a petition for probate and also a complaint seeking to set aside decedent's will and trust. Plaintiff filed a motion for summary disposition, arguing that defendant should not be considered a surviving spouse pursuant to MCL 700.2801(2)(e)(i) because defendant had been absent from decedent for more than a year. The probate court granted plaintiff's motion, thereby dismissing defendant's complaint.
Plaintiff filed a complaint seeking a determination that the probate court's previous ruling that defendant was not a surviving spouse operated to destroy the tenancies by the entireties meaning that the two properties were held by defendant and the estate as tenants in common. Defendant filed a motion for summary disposition arguing that the tenancies by the entireties remained intact, despite the probate court's previous ruling, and, therefore, he was sole owner of the properties. The probate court granted defendant's motion.
Subsequently, plaintiff filed an amended complaint seeking contribution for decedent's maintenance of the properties during defendant's absence, including maintenance, tax and mortgage costs. Plaintiff alleged that decedent paid for all property related expenses during defendant's extended absences, while defendant made no contribution whatsoever. Defendant moved for summary disposition. The probate court granted the motion finding that a tenancy by the entirety “is held without regard to who provided a greater contribution....” Plaintiff filed a leave to appeal this decision with the Court of Appeals. The Court of Appeals denied leave and plaintiff filed application with the Michigan Supreme Court. The Supreme Court on reconsideration of plaintiff's application for leave to appeal with that Court, directed the Court of Appeals to consider “whether a contribution claim against the defendant, based on an unjust enrichment theory, is appropriate under the facts of the case.”
The Court of Appeals began its analysis by commenting on the rights a spouse enjoys in an entireties property as well as the doctrine of contribution by citing principals from several Michigan cases. A tenancy by the entirety is a type of concurrent ownership in real property which is unique to married persons. One tenant by the entirety has no interest separable from that of the other. Both spouses have the right to survivorship. Thus, entireties properties are not part of decedent spouse's estate and the law of descent and distribution does not apply to property passing to the survivor. Under Michigan law, a divorce will end a tenancy by the entirety, thereby creating a tenancy in common, which permits each spouse to obtain an equal share of the property which is divisible and alienable as each spouse wishes. The doctrine of contribution is an equitable remedy which allows one who has paid more than his share of the joint obligation to recover contribution from those jointly liable. A claim for contribution may be principled upon a theory of unjust enrichment which is the retention of money or benefits which in justice and equity belong to another. The Court further pointed out that one is not unjustly enriched by retaining benefits involuntarily acquired which law and equity give him absolutely without any obligation on his part to make restitution. Enrichment of a person is not unjust if pursuant to the expressed agreement of the parties fairly and honestly arrived at beforehand.
The Court of Appeals concluded that the recipient of an entireties property, the surviving spouse, is not unjustly enriched and is not subject to liability based on a contribution theory. Defendant only received that which was given to him by operation of law, without any obligation--ownership of the whole entireties property. This would include all previously made property-related expenses paid for by either himself or by the decedent spouse. The Court then held that upon the death of one spouse, where the married couple owns entireties property, the decedent's estate cannot claim contribution from the surviving spouse as it relates to the entireties property based on a theory of unjust enrichment. There is no inequity, nor any law, with which to force restitution from a surviving spouse who owns property in the entirety.
The Court of Appeals rejected the plaintiff's attempt to use Michigan divorce law or non-Michigan case law. They stated that it would be imprudent not to perpetuate the indivisible estate created by spouses when they jointly obtained property in their capacity as husband and wife. What plaintiff was proposing by trying to divide the entireties property was tantamount to a posthumous divorce. They rejected the invitation to invent a claim upon which the decedent's spouse's estate can sue the surviving spouse for contribution for expenses made related to the entireties property based on a theory of unjust enrichment. The trial court's grant of summary disposition for defendant was affirmed.
This is a fairly complicated and well reasoned case. I believe that there are two things which should be taken from it. First, a finding under MCL 700.8201(2)(e) that an individual married to a decedent is not a surviving spouse does not terminate a tenancy by the entirety. Second, upon the death of one spouse, where the married couple owns entireties property, the decedent's estate cannot claim contribution from the surviving spouse as it relates to the entireties property based upon a theory of unjust enrichment.
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