IN RE IDA SPRENKLE-HILL ESTATEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of IDA SPRENKLE-HILL, Deceased.
GEORGE H. HILL,
February 22, 2005
Barry County Probate Court
LC No. 2002-023531-DA
LESLIE R. FLINT,
Official Reported Version
DAVID H. TRIPP, Personal Representative of the
Estate of IDA SPRENKLE-HILL, Deceased,
Before: Whitbeck, C.J., and Jansen and Bandstra, JJ.
Petitioner George H. Hill appeals as of right from the probate court's order denying his
petition to elect against the decedent's will and claim a spousal share under MCL 700.2202(2).
We reverse. We decide this case without oral argument pursuant to MCR 7.214(E).
I. Basic Facts And Procedural History
The decedent, Ida Sprenkle-Hill, had executed a will and trust in 1999, providing that on
her death her entire estate would pour into the trust, which in turn would disburse specific
amounts totaling $9,000 to two individuals and the remainder to her two sons. Sprenkle-Hill
died in 2001. She had married Hill six months earlier, but never changed her will. Hill filed a
spouse's election under MCL 700.2202(2). The probate court concluded that the general spousal
election under MCL 700.2202(2) was not available to Hill because he was entitled to receive a
share of the estate pursuant to MCL 700.2301, which applies to a spouse who married the
testator after the testator's will was executed.
II. MCL 700.2202 and MCL 700.2301
A. Standard Of Review
Statutory construction is a question of law that requires review de novo.1
B. The Statutory Language
This case involves the interaction between two provisions of the Estates and Protected
Individuals Code (EPIC)2: MCL 700.2202, which is editorially captioned "election of surviving
spouse," and MCL 700.2301, which is editorially captioned "entitlement of spouse; premarital
will." MCL 700.2202 provides, in relevant part:
(2) The surviving spouse of a decedent who was domiciled in this state
and who dies testate may file with the court an election in writing that the spouse
elects 1 of the following:
(a) That the spouse will abide by the terms of the will.
(b) That the spouse will take ½ of the sum or share that would have passed
to the spouse had the testator died intestate, reduced by ½ of the value of all
property derived by the spouse from the decedent by any means other than testate
or intestate succession upon the decedent's death.
MCL 700.2301 provides, in relevant part:
(1) . . . [I]f a testator's surviving spouse marries the testator after the
testator executes his or her will, the surviving spouse is entitled to receive, as an
intestate share, not less than the value of the share of the estate the surviving
spouse would have received if the testator had died intestate as to that portion of
the testator's estate, if any, that is not any of the following:
(a) Property devised to a child of the testator who was born before the
testator married the surviving spouse and who is not the surviving spouse's child.
(b) Property devised to a descendant of a child described in subdivision
(c) Property that passes under section 2603 or 2604 to a child described
in subdivision (a) or to a descendant of such a child.
Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995).
MCL 700.1101 et seq.
Sections 2603 and 2604, MCL 700.2603 and 700.2604, address substitute gifts and failures of
testamentary provisions, respectively.
In other words, under § 2202, a surviving spouse may elect either to abide by the will or to
receive a share of the decedent's estate, which is referred to as the spouse's "elective share."4
Under § 2301, a "pretermitted spouse"—that is, a surviving spouse who married the testator after
the will was executed—is entitled to receive an intestate share of a specified portion of the
C. Interpreting The Language
Hill did not claim a share of the estate as a pretermitted spouse under § 2301, but chose
instead to take his elective share under § 2202. The question this case presents is whether Hill
was entitled to take his elective share as a surviving spouse or whether, as a pretermitted spouse,
he was limited to the remedy afforded under § 2301. EPIC did not become effective until April
1, 2000, and this Court has not yet addressed the interaction between these provisions. We are
thus faced with a question of statutory interpretation that we resolve using the following well
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the
intent of the Legislature.6 The first step in determining legislative intent is to review the
language of the statute.7 If the statute is unambiguous, the Legislature is presumed to have
intended the meaning expressed, and judicial construction is neither required nor permissible.8
However, "[w]hen reasonable minds may differ with regard to the meaning of a statute, the
courts must look to the object of the statute, the harm it is designed to remedy, and apply a
reasonable construction that best accomplishes the purpose of the statute."9
A review of the language of the elective-share provision reveals that, by its terms, it
applies to "[t]he surviving spouse of a decedent who was domiciled in this state and who dies
testate . . . ." This language is unambiguous, and there is no question that Hill satisfies these
criteria. There is no reference anywhere in § 2202 to § 2301, nor does the language of § 2202
indicate that it does not apply to a surviving spouse who is not mentioned in the decedent's will.
The language of the pretermitted-spouse provision indicates that it applies to a "surviving
spouse" who "marries the testator after the testator executes his or her will . . . ." This language
is also unambiguous, and Hill likewise satisfies these terms. Although § 2301 contains several
exceptions–for example, where there is evidence that the testator made the will in contemplation
of the marriage to the surviving spouse10—nothing in § 2301 indicates that a person who meets
Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).
In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
Chop v Zielinski, 244 Mich App 677, 680; 624 NW2d 539 (2001).
See MCL 700.2301(2)(a).
the qualifications for receiving an intestate share under § 2301 is barred from taking an elective
share under § 2202.
Given the absence of ambiguity in the statutory language of §§ 2202 and 2301 and the
lack of any statutory language to the contrary elsewhere in EPIC, we conclude that a surviving
spouse who married the testator after the will was executed is not barred from claiming an
elective share under the terms of § 2202. This construction is consistent with the reporter's
comment to § 2301, which indicates that a pretermitted spouse is eligible to choose an elective
share of the estate under § 2202.11 It is also consistent with the operation of the analogous
provisions of the Uniform Probate Code,12 on which EPIC is modeled.13 Further, when this
Court construed the analogous provisions of Michigan's previous Revised Probate Code, it held
that a spouse could take an elective share without waiving the remedy provided for pretermitted
spouses,14 which implies that the two provisions were not considered mutually exclusive.
The reporter's comment to § 2301 states, in part:
If this § 2301 intestate share is less than the spouse's elective share under §
2201, it is part of (counts against) the elective share. If this § 2301 share is
greater than the elective share, the spouse will receive this intestate share even if
the spouse elects to abide by the terms of the will. [1 Michigan Probate
Sourcebook (3d ed), p 1-74.]
Note that the elective share under § 2201 to which the comment refers is the same as that under §
2202. Section 2201, MCL 700.2201, provides: "Subject to sections 2203 to 2205, upon an
individual's death, the individual's surviving spouse has the right described by section 2202."
Sections 2203 to 2205, MCL 700.2203 to 700.2205, address situations that are not present in this
The analogous provisions of revised Article II of the Uniform Probate Code are §§ 2-202
(elective share provision) and 2-301 (pretermitted spouse provision). The comment to the 1990
revised version of § 2-301 reads, in part:
Under this section, a surviving spouse who married the testator after the
testator executed his or her will may be entitled to a certain minimum amount of
the testator's estate. The surviving spouse's entitlement under this section, if any,
is granted automatically; it need not be elected. If the surviving spouse exercises
his or her right to take an elective share, amounts provided under this section
count toward making up the elective-share amount by virtue of the language in
subsection (a) stating that the amount provided by this section is treated as "an
intestate share." [8 ULA 133-134.]
See 1 Michigan Probate Sourcebook (3d ed), Reporter's Preface, p xiii (". . . EPIC follows the
[Uniform Probate Code] and is based on the same philosophical and substantive provisions . . .
See In re Cole Estate, 120 Mich App 539; 328 NW2d 76 (1982) (construing former MCL
700.282 [elective share] and former MCL 700.126 [pretermitted spouse]). See also In re
Herbach Estate, 230 Mich App 276, 282 n 3; 583 NW2d 541 (1998) (noting that a surviving
spouse's "decision to take her elective share of the estate did not operate as a waiver of her right
to pursue the larger share potentially available to her as a pretermitted spouse").
This interpretation also furthers the policy considerations underlying each provision. An
examination of the reasoning employed by the West Virginia Supreme Court of Appeals in
Mongold v Mayle15 in addressing the interaction between that state's pretermitted-spouse
provision16 and its elective-share provision17 is instructive. In Mongold, a surviving spouse
appealed the circuit court's ruling that she was not entitled to claim her elective share because the
statutory provision governing pretermitted spouses, which the appellate court referred to as the
"premarital will provision," was exclusively controlling.18 The appellate court began its analysis
by observing that the purpose of an elective-share statute "is to prevent disinheritance of the
spouse," and that this form of spousal protection has existed since the Code of Hammurabi.19
Mongold v Mayle, 192 W Va 353; 452 SE2d 444 (1994).
W Va Code 42-3-7. This provision, which is nearly identical to MCL 700.2301, states:
(a) If a testator's surviving spouse married the testator after the testator
executed his or her will, the surviving spouse is entitled to receive, as an intestate
share no less than the value of the share of the estate he or she would have
received if the testator had died intestate as to that portion of the testator's estate,
if any, that neither is devised to a child of the testator who was born before the
testator married the surviving spouse and who is not a child of the surviving
spouse nor is devised or passes to a descendant of such a child, unless:
(1) It appears from the will or other evidence that the will was made in
contemplation of the testator's marriage to the surviving spouse;
(2) The will expresses the intention that it is to be effective
notwithstanding any subsequent marriage; or
(3) The testator provided for the spouse by transfer outside the will and the
intent that the transfer be in lieu of a testamentary provision is shown by the
testator's statements or is reasonably inferred from the amount of the transfer or
(b) In satisfying the share provided by this section, devises made by the
will to the testator's surviving spouse, if any, are applied first, and other devises,
other than a devise to a child of the testator who was born before the testator
married the surviving spouse and who is not a child of the surviving spouse or a
devise or substitute gift to a descendant of such a child, abate.
West Virginia's elective-share provision is codified at W Va Code 42-3-1. When Mongold
was decided, the provision stated, in relevant part:
(a) The surviving spouse of a decedent who dies domiciled in this state has
a right of election, under the limitations and conditions stated in this part, to take
an elective-share amount equal to the value of the elective-share percentage of the
augmented estate, determined by the length of time the spouse and the decedent
were married to each other, in accordance with the following schedule: [schedule
Mongold, supra at 354, 356.
Id. at 355, citing Fisher & Curnutte, Reforming the Law of Intestate Succession and Elective
Shares: New Solutions to Age-Old Problems, 93 W Va L Rev 61, 98-115 (1990).
The appellate court found that modern elective-share statutes reflect "'the contemporary view of
marriage as an economic partnership,'"20 and are based on the rationales that all surviving
spouses have contributed in some way toward the deceased's ability to acquire property, and that
the surviving spouse will need to be supported.21 The appellate court concluded that the purpose
behind West Virginia's elective-share provision was "to prevent spousal disinheritance in order
to ensure that the surviving spouse's contribution to the acquisition of property during the
marriage is recognized and in order to ensure that the surviving spouse has continuing financial
support after the death of his or her spouse."22
The appellate court then observed that this purpose was "obviously different than the
purpose of the premarital will provision," which considers "the possibility that the decedent
spouse may have forgotten about the pre-existing will when marrying the surviving spouse, and
if the decedent spouse had remembered the will, he would have included the surviving spouse in
the will."23 The appellate court concluded that "[c]ommon sense dictates" that the premarital
will provision "does not preclude a surviving spouse from taking an elective share" because "[t]o
hold otherwise, would allow a spouse to disinherit his or her spouse, thereby defeating the
purpose behind the elective-share theory of the Revised Uniform Probate Code."24
We find this reasoning persuasive, and we adopt it here. Because §§ 2202 and 2301 are
not ambiguous and do not conflict, we see no reason to interpret these provisions in a manner
that would undermine the Legislature's intent to insulate all spouses from disinheritance while
also allowing a decedent's likely testamentary intent to be honored to the extent possible.25
Accordingly, we conclude that a surviving spouse who satisfies the conditions of § 2301 may
nonetheless take an elective share under § 2202 if that provision yields a larger amount. The
amount to which the surviving spouse was entitled under § 2301 will then be considered part of
the elective share.26 Conversely, if the share available to a surviving spouse under § 2301 is
Mongold, supra at 355-356, quoting the general comment to revised Article II of the Uniform
Probate Code, see 8 ULA 93.
Mongold, supra at 356, citing Roberts, The 1990 Uniform Probate Code's Elective-Share
Provisions—West Virginia's Enactment Paves the Way, 95 W Va L Rev 55, 57-58 (1992).
Mongold, supra at 356.
Id. at 357.
See Frankenmuth Mut Ins, supra at 515; In re MCI Telecom Complaint, supra at 411. See
also Waggoner, The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform
Probate Code, 76 Iowa L Rev 223, 254 (1991) (noting that one purpose of the omitted-spouse
provision, which "stands in addition to the apparatus of the elective share," is "to provide a share
for the surviving spouse more related to the amount the decedent probably would have wanted to
give, had the decedent gotten around to revising the premarital will"). Lawrence W. Waggoner
was the reporter for the drafting committee for the revised Article II of the Uniform Probate
See reporter's comment to § 2301, 1 Michigan Probate Sourcebook (3d ed), p 1-74.
greater than the elective share under § 2202, the surviving spouse will receive the full amount to
which he or she is entitled under § 2301 by electing—either affirmatively27 or by default28—to
abide by the terms of the will.
Reversed and remanded for further proceedings.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Richard A. Bandstra
See MCL 700.2202(2)(a).
See MCL 700.2203.