When a spouse has waived her dower rights to property, is that property still considered in making a calculation as to what the spousal share will be if the spouse takes against the will?

When a spouse has waived her dower rights to property, is that property still considered in making a calculation as to what the spousal share will be if the spouse takes against the will? (ref. section 2202) 0240

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Question

I am in the process of handling the probate estate where the following problem has arisen:

The deceased, who died 9/15/00, was 77 years old and had been married to his second wife for about 8 years. A commercial building and adjacent parcel as well as a residence in Northern Michigan are included in the probate estate. In approximately February, 1997 the second spouse waived her dower rights to each of these real estate properties.

Although the decedent died testate, the second spouse was not named in the last will and testament that was admitted to probate. When she made her election, therefore, she chose number 1b of form PC 581 which entitles her to one half the share that would have passed had the deceased died without a will, reduced by one half the value of the property derived by any means other than testate/intestate succession.

With the surviving spouse having waived her dower rights to the two parcels of real estate in 1997, should or can this waiver of interest extend to the exclusion of the value of these two assets in the calculation of her distributable share of the estate?

Answer

No, the spouse's waiver of her dower rights is not a waiver of her right to take under testate/intestate succession, or her right to take the property under any other means. Her waiver of the dower right would eliminate the property from consideration if she selected (c), her dower rights. Note that the value of dower rights is not included in the value of the intestate share.

Please note that this answer only addresses issues raised by MCL 700.2202.

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Last Updated: 5-3-01

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