ELDER LAW ALERT: Can you disinherit the exempt property allowance?

By Alan Polack

This article discusses the Michigan Court of Appeals decision in an appeal from the Clare County Probate Court.

The case is entitled In re Estate of SHELBY JEAN JAJUGA, Court of Appeals Case No. 322522 decided on Oct. 20, 2015.

This case involves interpretation of the Estate and Protected Individuals Code (EPIC) and is characterized by the court itself as one of raising an issue of first impression under Michigan Law.

The facts are simple.

The decedant, Shelby Jean Jajuga (Shelby), executed her Last Will and Testament on Jan. 16, 2002. The will divided Shelby's estate into three parts and designated the beneficiaries to receive her estate.

The document also included a provision, which stated that decedant's living children were to "inherit nothing from her estate."

Following decedant's death, one of the disinherited children objected to the final account of the personal representative because the personal representative refused to pay that child the exempt property allowance as required by MCL 700.2404.

That child requested the court to award her the exempt property that she had selected from the estate, or in the alternative $14,000.00 in cash plus attorney fees.

In response, the personal representative contended that the child was not entitled to the exempt property because she was specifically disinherited under the will.

After holding a hearing on this child's objections to the final account, the probate court held that the child was entitled to the exempt property allowance.

The court of appeals used about 12 pages to interpret EPIC to justify its final decision to uphold the probate court.

I don't think repetition of the court's exercise and construction of EPIC is appropriate here.

You should read the decision; it seems to infer that EPIC confers an absolute to the exempt property allowable to children.

This decision raises the following question. When a testator decides to disinherit a child, can the testator add language to the will that prevents the child from also receiving that child's exempt property allowance?

I don't believe this decision clearly answers that question.

There has been much discussion about adding language to wills to bar the disinherited child from receiving the exempt property allowance. I am not sure that such language would be effective.

Therefore, does the inclusion of such language create a problem for the draftor (you) if a personal representative relies on it and it doesn't work?

In other words, do you want to include testamentary language that may or may not be effective or just leave it alone?

I wish everybody who reads this article would examine the case carefully and share your thoughts with me. My email is apolack@alanpolack.com.

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Alan F. Polack specializes in elder and probate law and practices out of Shelby Township. He is a former president of the Macomb County Probate Bar Association.

Published: Thu, May 19, 2016

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