A “surviving spouse’s” rights under the Estates & Protected Individuals Code to receive a share of the estate upon the death of his or her spouse; MCL 700.2202(1) & (2); Principle that a spouse can lose these rights if he or she is “willfully absent from the decedent spouse” for more than a year before that spouse’s death; MCL 700.2801(2)(e)(i); In re Erwin; Whether a spouse who has filed for divorce but is not yet divorced when his or her spouse dies is “willfully absent” & ineligible for benefits as a “surviving spouse”; Effect of MCL 700.2801(3)(b); The expressio unius est exclusio alterius canon of statutory interpretation; Bronner v Detroit

The court held that petitioner (decedent-Hermann’s daughter) failed to rebut the presumption that respondent (Hermann’s purported surviving spouse) was not willfully absent for purposes of inheritance, given respondent promptly filed for divorce and pursued the entry of a divorce judgment via communications with the decedent through her attorney. Respondent filed for divorce from Hermann. Hermann died before the divorce was finalized. Petitioner sought a declaration that respondent was willfully absent for more than a year before Hermann’s death and thus, was not his surviving spouse for purposes of inheritance. The probate court agreed. The Court of Appeals reversed, finding that “any period of time consumed by a divorce proceeding did not constitute ‘willful absence’ that would disinherit an otherwise qualified surviving spouse.” The court concluded that “there is no statutory basis for a categorical rule that filing for divorce precludes a finding of willful absence.” But it held that “the filing of a divorce action creates a presumption that the spouse was not willfully absent.” A challenging party can rebut this presumption “by showing that, under the totality of the circumstances, the surviving spouse’s communications, or lack thereof, were inconsistent with a recognition of the continued existence of the legal marriage.” The court found that petitioner did not sustain “her burden to show that [respondent] was willfully absent notwithstanding her communications with Hermann through their attorneys while attempting to secure an attorney-negotiated judgment of divorce. There is no evidence that [respondent] failed to participate with Hermann to expeditiously resolve the divorce action. To the contrary, [she] filed for divorce less than two weeks after their last direct contact and the judgment of divorce was close to being entered when Hermann died scarcely a year after filing.” Further, during the divorce proceedings they “stipulated through their attorneys to the occupancy of the marital home and the appropriate use of marital funds, and they worked out a settlement of everything but spousal support before Hermann’s death, which implies frequent and detailed communications between the spouses through their attorneys.” Under the circumstances, respondent “was not willfully absent from Hermann for more than a year before his death.” Affirmed.

Dissenting, Justice Zahra, joined by Justice Viviano, asserted that “[n]ot only is the majority opinion’s new test inconsistent with a fair and reasonable reading of the holding and logic of Erwin, but it also generates a per se rule that is unsupported either by the text of MCL 700.2801(2)(e)(i) or by Erwin.”

Dissenting separately, Justice Viviano noted that he joined Justice Zahra’s dissent in full, but wrote to “make a few additional observations.” He concluded with his belief that “it would be far better for the law to retain a flawed interpretation than to tack another new, even more flawed interpretation onto it.”