FAQ — Rights of a Spouse When a Divorce Was Not Final Under Michigan Law

Short answer: In Michigan, a person remains legally married until a judge signs a final judgment of divorce. If the divorce was not final when the decedent died, the estranged spouse is still the legal spouse and generally keeps the same inheritance and probate rights as any surviving spouse. However, specific facts—like a signed separation agreement that waives estate rights or a valid premarital agreement—can change the outcome. Because estate and probate rules are technical and time-sensitive, consult a probate attorney promptly.

Detailed answer

Michigan treats marital status at the moment of death as determinative for inheritance and probate rights. That means:

• If a divorce action was filed but not yet finalized by court order, the parties remain legally married. The surviving spouse can inherit under an intestacy statute, take property left to a spouse in a will, or exercise other statutory protections available to spouses.
• If a will attempts to disinherit the spouse while the couple are still married, the spouse generally retains the right to challenge the will or to claim statutory allowances available to a surviving spouse (for example, homestead or family allowances and other protections provided under Michigan probate law).
• A final divorce judgment, annulment, or a specific statutory revocation triggered by divorce will terminate the marriage relationship and remove the ex-spouse’s automatic rights. But until the judgment is entered, those rights remain.
• Certain agreements can change the result. A valid prenuptial or postnuptial agreement, or a separation agreement that expressly and validly waives the spouse’s inheritance or elective rights, can prevent an estranged spouse from claiming under the estate even if the divorce is not final. Whether such an agreement is enforceable depends on how it was drafted and whether it complies with Michigan contract and probate law.
• Legal separation: If the couple obtained a court order for separate maintenance or another formal judicial order creating a legal separation (not merely living apart), that order may affect inheritance rights depending on its terms and Michigan law. Informal separation or living apart without a court order does not by itself terminate spousal rights.

Michigan’s probate process also provides additional protections for a surviving spouse. These may include:

• Priority to claim exempt personal property and a statutory family allowance for support during the probate process;
• Ability to elect against the will in many cases if the will does not provide adequately for the surviving spouse;
• Rights under intestacy rules if the decedent left no valid will.

For general information about Michigan probate law and to find statutes and local court resources, see the Michigan Legislature site (for the Estates and Protected Individuals Code) and the Michigan Courts probate information pages:

• Michigan Legislature — searchable statutes and the Estates and Protected Individuals Code
• Michigan Courts — probate information and forms

Common fact-patterns and how they usually play out

1. Divorce filed but not final

If one spouse filed for divorce and the other spouse died before the judge signed the final judgment, the surviving spouse remains the legal spouse. They can share in the estate under Michigan intestacy rules or take under the will unless a valid agreement says otherwise.

2. Parties had a signed separation agreement waiving estate rights

A clear, enforceable written waiver of marital rights may prevent the surviving spouse from claiming. The details matter: when the agreement was signed, whether it complies with legal requirements, and whether it was subsequently revoked or superseded.

3. Informal separation with no court order

Living apart does not change a spouse’s statutory rights. The estranged spouse typically still has inheritance rights until a final divorce judgment is entered.

4. Pending settlement but no signed final judgment

Settlement discussions or an unsigned agreement do not end marital status. Until the judge signs a final order, the spouse remains legally married.

Practical steps for someone in this situation

1. Confirm the decedent’s marital status with the probate court and obtain the decedent’s death certificate.
2. Locate the will (if any), prenuptial or separation agreements, and any pending divorce paperwork filed in family court.
3. Check whether the decedent opened a probate estate or whether someone has filed for appointment as personal representative. If probate has not been opened, a spouse typically can start the probate process to protect their rights.
4. Consider timely actions such as electing against a will or filing a will contest. These actions have statute-of-limitations and procedural deadlines in probate court.
5. Talk to a Michigan probate or estate attorney quickly. Small filing mistakes or missed deadlines can forfeit rights.

Helpful hints

• Don’t assume an estranged or separated spouse has no rights—only a final divorce or a valid written waiver usually removes spousal inheritance rights.
• Gather paperwork: marriage certificate, any separation/divorce filings, the decedent’s will, prenuptial/postnuptial agreements, and evidence of communications that show intent (if relevant).
• Act fast. Probate has deadlines for filing inventories, making elections, and contesting wills. Missing deadlines can permanently close off options.
• Watch for overlapping jurisdictions: family court divorce actions and probate court matters can affect each other. An attorney can coordinate filings between the courts.
• If there’s a signed agreement waiving rights, bring it to a lawyer immediately—the enforceability analysis can be fact-intensive.
• Use official resources: search Michigan statutes at the Michigan Legislature website and find probate forms and local court contacts on the Michigan Courts website (links above).

Bottom line: If the divorce was not final when the person died, the estranged spouse normally retains full rights as a surviving spouse under Michigan law. Exceptions exist (valid waivers, prenuptial agreements, or specific court orders), so obtain legal advice right away to protect or assert rights in the estate.

Disclaimer: This article explains general principles of Michigan law and is for educational purposes only. It is not legal advice and does not create an attorney–client relationship. For advice about your specific situation, consult a licensed Michigan probate or family law attorney.