IN RE ESTATE OF JAMES W MILTENBERGER
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of JAMES W. MILTENBERGER,
Deceased.
SUSAN EIFLER, Personal Representative of the
Estate of JAMES W. MILTENBERGER,
Deceased,
FOR PUBLICATION
March 27, 2007
9:05 a.m.
Appellee,
and
SHARON MILTENBERGER,
Petitioner-Appellee,
v
No. 270716
Calhoun Probate Court
LC No. 2004-000287-DE
SANDRA SWARTZ,
Respondent-Appellant.
Official Reported Version
Before: Markey, P.J., and Saad and Wilder, JJ.
PER CURIAM.
This case presents the question whether the dower statute, MCL 700.2202(2)(c),1 denies
respondent the equal protection of the laws. We hold that it does not.
1
MCL 700.2202(2) provides, in pertinent part, that if a person dies testate, the surviving spouse
may elect one 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 . . . .
(continued…)
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I
James Miltenberger was married to petitioner, Sharon Miltenberger. Respondent Sandra
Swartz, was James's child from a previous marriage. James Mittenberger died in 2004.
Petitioner sought to take her statutory dower interest in certain property her husband
owned before his death, MCL 700.2202(2)(c), in lieu of taking under the decedent's will, which
left her nothing. Respondent filed a motion for summary disposition under MCR 2.116(C)(8)
and (C)(10) in which she challenged the constitutionality of the dower statute on equal
protection grounds. Respondent argued that the dower statute discriminated in favor of women
and against men. The probate court rejected respondent's constitutional challenge. It reasoned,
in pertinent part:
Concerning the constitutionality, this Court is going to reluctantly decline
to make dower unconstitutional . . . . I'm going to give deference to the
legislature in this particular matter. Number one, I think that certainly dower
serves or can be seen to serve an important governmental objective [,] that of
protecting widows. I guess anecdotally most property, especially business
property, is owned or in the name of men, and I think that one of the reasons for
dower is that very inequality which we see sometimes in our society. I believe
that still even though it's a changing norm, women, a lot of times, do stay home.
They raise the children. The men are the ones who are the professionals or
breadwinners in the family, and as part of this, they also are the ones who hold the
title to the property. And I think that the legislature certainly can see the fact that
a woman stays home and does the important work of raising the family without
compensation, without learning a skill otherwise, that she deserves some
protection that would not also go to a man.
Again, this is anecdotal evidence, and that's why I have such a reluctance .
. . to sit here today and declare this statute to be unconstitutional, because quite
frankly, . . . it would not hurt my feelings to see dower go. Dower historically has
always been here in Michigan, and . . . it was re-adopted when the Estate[s] and
Protected Individuals Code [EPIC] was adopted back in nineteen, I believe,
ninety-nine. In fact, it was specifically considered because I do not believe that
there is any dower in the Uniform Probate Code which was used as a model for
EPIC. I know that dower was not submitted as the draft before the legislature by
the Probate and Estate Planning Council, which was the major sponsor of that
legislation, because I was a member and an officer in that council. I know that, in
(…continued)
(c) If a widow, that she will take her dower right under sections 1 to 29 of
1846 RS 66, MCL 558.1 to 558.29. [Emphasis added.]
Pursuant to the estates in dower act, MCL 558.1 et seq., "[t]he widow of every deceased person,
shall be entitled to dower, or the use during her natural life, of 1/3 part of all the lands whereof
her husband was seized of an estate of inheritance, at any time during the marriage, unless she is
lawfully barred thereof." MCL 558.1.
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fact, the adoption of EPIC was delayed until the legislature or certain legislators
had dower placed back in that legislation, and then it was adopted.
I believe that this is . . . something which is peculiar to the legislature as
elected governmental officials to determine whether or not this is an important
government objective to protect widows in our society. Certainly I believe that
dower . . . is substantially related to the achievement of that particular objective if
there is a determination that widows somehow are in a—a special class that needs
this particular protection.
So I am going to, once again, defer to the legislature, and I'm going to
decline to declare dower to be unconstitutional. . . .
The probate court denied in part respondent's motion for summary disposition, holding that the
dower statute did not violate the equal protection clauses of the United States2 and Michigan3
constitutions. Respondent appeals as of right.
II
We review the trial court's ruling on a motion for summary disposition de novo. Kefgen v
Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). Constitutional issues are also
reviewed de novo on appeal. Dorman v Clinton Twp, 269 Mich App 638, 644; 714 NW2d 350
(2006). Where the parties rely on documentary evidence in support of their arguments, appellate
courts proceed under the standards of review applicable to a motion made under MCR
2.116(C)(10). Krass v Tri-County Security, Inc, 233 Mich App 661, 665; 593 NW2d 578 (1999).
When deciding a motion for summary disposition under MCR 2.116(C)(10), a court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence
submitted in the light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists. Id. at 667 n 4. Such materials are to be considered only to the extent that
they are admissible in evidence. MCR 2.116(G)(6).
III
In addition to the statutory provisions of MCL 700.2202 and MCL 558.1, the Michigan
Constitution recognizes the right of dower. Article 10, § 1, which abolished the disabilities of
coverture as to property, provides that "[d]ower may be relinquished or conveyed as provided by
law." Const 1963, art 10, § 1. Nevertheless, article 10, § 1 is reviewable for constitutionality "in
light of the equal protection guarantees provided under" the United States and Michigan
constitutions. See North Ottawa Community Hosp v Kieft, 457 Mich 394, 405; 578 NW2d 267
(1998).
2
The Fourteenth Amendment provides, in relevant part: "No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws." US Const, Am XIV, § 1.
3
"No person shall be denied the equal protection of the laws . . . ." Const 1963, art 1, § 2.
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With regard to the state constitutional claim, every provision in our constitution "must be
interpreted in the light of the document as a whole, and no provision should be construed to
nullify or impair another." Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665
NW2d 452 (2003). All constitutional provisions enjoy equal dignity, and a fundamental rule of
construction requires construction of every clause or section of a constitution consistent with its
words, to protect and guard its purposes. In re Proposals D & H, 417 Mich 409, 421; 339 NW2d
848 (1983). Accordingly, article 10, § 1 must be read together with the equal protection
guarantee in article 1, § 2. See Gentzler v Smith, 320 Mich 394, 404; 31 NW2d 668 (1948); Nat'l
Pride at Work, Inc v Governor, 274 Mich App 147, 167; 732 NW2d 139 (2007). In short,
because dower is expressly mentioned in our constitution, the ability of the Legislature to enact
the dower statute is enshrined in our constitution. This Court is therefore obliged to read, if
possible, article 10, § 1 as consistent with the state Equal Protection Clause, rather than reading
them as conflicting with one another.
In Electronic Data Sys Corp v Flint Twp, 253 Mich App 538, 551; 656 NW2d 215
(2002), this Court outlined the extent of equal protection clause review:
The Equal Protection Clauses of the United States and Michigan
Constitutions provide that no person shall be denied the equal protection of the
law. US Const, Am XIV; Const 1963, art 1, § 2. The essence of the Equal
Protection Clauses is that the government not treat persons differently on account
of certain, largely innate, characteristics that do not justify disparate treatment.
While the Equal Protection Clauses require that persons in similar circumstances
be treated alike, those things which are different in fact or opinion [are not
required] to be treated in law as though they were the same. Thus, the Equal
Protection Clauses do not prohibit the state from distinguishing between persons,
but require that the distinctions that are made not be arbitrary or invidious.
[Electronic Data Sys Corp, supra at 551 (citations and internal quotation marks
omitted).]
"[W]hen legislation is challenged as violative of the equal protection guarantee under
either constitution, it is subjected to judicial scrutiny to determine whether the goals of the
legislation justify the differential treatment it authorizes." Doe v Dep't of Social Services, 439
Mich 650, 661-662; 487 NW2d 166 (1992). The Court reviews legislation creating
classifications based on gender using the intermediate level of scrutiny, under which "a
challenged statutory classification will be upheld only if it is substantially related to an important
governmental objective." Phillips v Mirac, Inc, 470 Mich 415, 433; 685 NW2d 174 (2004)
(citations omitted).
In Kahn v Shevin, 416 US 351; 94 S Ct 1734; 40 L Ed 2d 189 (1974), the United States
Supreme Court upheld as constitutional a statute conferring financial benefits to widows but not
widowers. The Court held that the classification was substantially related to an important
governmental objective because it was "reasonably designed to further the state policy of
cushioning the financial impact of spousal loss upon the sex for which that loss imposes a
disproportionately heavy burden." Id. at 353-355.
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In Orr v Orr, 440 US 268; 99 S Ct 1102; 59 L Ed 2d 306 (1979), the Court considered
the constitutionality of Alabama alimony statutes requiring that husbands, but not wives, pay
alimony upon divorce. Id. at 270. The Court held that the statutes served important
governmental objectives, i.e., "assisting needy spouses" and reducing the economic disparity
between men and women. Id. at 280. The legislation, however, was not substantially related to
achieving those objectives because in divorce actions in which alimony is a contested issue, the
court holds an individualized hearing to consider the parties' "relative financial circumstances."
Therefore, there was no reason to use sex as a proxy for need or to assume that due to economic
disparities, women require financial assistance whereas men do not. Id. at 280-282. Orr
therefore struck down the statute as violative of the equal protection clause.
Some states have abolished dower laws as unconstitutional. For example, in Stokes v
Stokes, 271 Ark 300, 304-305; 613 SW2d 372 (1981), the court, relying in part on Orr, abolished
a dower statute as unconstitutional because it provided a dower right to a widow without
extending a similar right to a widower. But the Arkansas Supreme Court subsequently limited
its holding to cases in which the husband died testate because state statutes afforded the same
rights to widows and widowers of an intestate spouse. Beck v Merritt, 280 Ark 331, 334-335;
657 SW2d 549 (1983).
In Boan v Watson, 281 SC 516; 316 SE2d 401 (1984), the court held that pursuant to Orr,
the state's common-law dower right was unconstitutional, but the court gave its holding
prospective effect only. Id. at 518-519. One justice disagreed with the court's reasoning because
"[w]e are not told how the Orr rationale requires the result here reached." Id. at 520 (Lewis,
C.J., dissenting in part). Chief Justice Lewis continued:
I do not find that Orr v. Orr establishes a directive to abolish all gender
based distinctions. That decision . . . pertained to domestic litigation and
presented rather narrow issues, all of which is disregarded by today's majority
opinion. In Orr v. Orr, the Court was concerned about two aspects of the
Alabama alimony statute: (1) the use of gender as a "proxy" for need; (2) the
claim that discrimination in favor of women was intended to compensate for past
social disadvantages. The Court found that gender should not be a proxy for
need, the latter being a matter which a divorce court could determine and resolve
through specific awards. Finding non-discriminatory solution [sic] to the problem
of the "needy spouse," the Court concluded that a gender-based statute was not a
permissible way to compensate for historical disadvantages.
Probate courts do not divide estates based upon the respective "needs" of
competing claimants. Rights are settled by operation of law, the outcome being
determined usually by prior decisions of the decedent. Unlike an alimony case,
there is no living wage-earner in an estate probate from whom payments can be
extracted based on earnings. Unless a testator has established a trust, there is
usually no ongoing resource upon which to draw. So it is that if women are to be
"compensated" through the probate courts, there must be some equivalent of
dower for them. If an alternative to dower recommends itself as social policy, the
General Assembly in any case must attend that matter.
-5-
The Orr rationale is limited to divorce litigation and should not be
extended to the matter of dower. There appears to be only one other court in this
country which has abolished dower based on Orr v. Orr. Unfortunately, the
Arkansas Supreme Court in Stokes v. Stokes provided no analysis to support its
action. [Id. at 520-521 (citations omitted).]
We agree with Chief Justice Lewis that Orr, as a decision relating to alimony, should not be
extended to the matters of wills and estates. Also, we agree that if an alternative to dower exists
that is more desirable as a matter of policy, the Legislature, not the judiciary, must so decide.
Glancy v City of Roseville, 457 Mich 580, 590; 577 NW2d 897 (1998).
Other states have upheld the constitutionality of dower laws. In In re Baer Estate, 562
P2d 614, 615-617 (Utah, 1977), the court, relying in part on Kahn, upheld a statutory dower
provision against an equal protection challenge. The Utah Supreme Court explained that the
statute served a longstanding policy to cushion "the financial impact of spousal loss upon the sex
for which that loss imposes a disproportionately heavy burden. It is a legitimate state purpose to
support widows who would have difficulty supporting themselves and therefore does not violate
the equal protection clause." Id. at 616.
In In re Rincon Estate, 327 So 2d 224 (Fla, 1976), the Florida Supreme Court upheld that
state's dower statutes. Relying on Kahn, the court found that "the distinction between the
treatment of the sexes" was "reasonably justified by the disparity between their economic
capabilities . . . ." Id. at 226. Noting that there was an exception in the state's constitution
providing that "dower or curtesy may be established and regulated by law," the court stated,
"[s]uch exception makes it clear that the drafters of the 1968 Constitution intended to vest
authority in the Legislature to make a distinction between the sexes with respect to providing
rights of a wife in the property of her husband without requiring that the husband be granted
reciprocal rights." Id.
We find In re Rincon Estate persuasive. The fact that the Michigan Constitution
provides that "[d]ower may be relinquished or conveyed as provided by law[,]" Const 1963, art
10, § 1, makes it clear that the drafters of the Michigan Constitution intended to recognize dower
as a legitimate property interest. In addition, we agree with the Utah Supreme Court that the
dower statute serves a longstanding policy of cushioning "the financial impact of spousal loss
upon the sex for which that loss imposes a disproportionately heavy burden[,]" and that "[i]t is a
legitimate state purpose to support widows who would have difficulty supporting themselves[.]"
In re Baer Estate, supra at 616.
It remains an unfortunate fact that there are still circumstances in which the surviving
wife may be significantly disadvantaged, in a way that surviving husbands generally are not, in
the absence of dower, and the Legislature may properly consider such circumstances through the
enacted dower statute. Under Kahn, a legislature has a legitimate interest in protecting the
economic interests of widows and protecting them from becoming impoverished. The
classification created by the dower statutes in this state is substantially related to an important
governmental objective because it is "reasonably designed to further the state policy of
cushioning the financial impact of spousal loss upon the sex for which that loss imposes a
disproportionately heavy burden." Kahn, supra at 353-355. Therefore, we hold that, pursuant to
-6-
Kahn, Michigan's statutory dower provisions do not violate the Equal Protection Clause of the
Michigan Constitution or the United States Constitution.
Affirmed.
/s/ Jane E. Markey
/s/ Henry William Saad
/s/ Kurtis T. Wilder
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