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In <a href="http://publicdocs.courts.mi.gov:81/opinions/final/coa/20160524_c326017_32_326017.opn.pdf" target="_blank" rel="noopener">Lovett v. Peterson, No. 326017</a>, the Michigan Court of Appeals upheld a Houghton Probate Court decision that a wife who was physically separated from her husband for many years while he lived with his mistress was not “willfully absent” under the testate spousal election statute MCL 700.2801(2)(e)(i). 
  
Arbutus Peterson married Lyle Peterson in 1959. Lyle began having an extramarital affair with Susan Strieter in the early 1990s. Arbutus was aware of Lyle’s extramarital activities, but continued to live with him as his wife and work with him in the store they co-operated. In 2007 Lyle moved out of his home with Arbutus and in with his mistress Strieter. Arbutus did not attempt to contact or visit Lyle while he lived with Strieter, but remained faithful to their marriage. Lyle died in September 2011. Arbutus elected against Lyle’s will in October 2014. Rhonda Lovett, Lyle Peterson’s daughter from a previous relationship, petitioned the probate court for a declaration that Arbutus was not a surviving spouse of Lyle because she was “willfully absent” from him for more than a year before he died. 
  
MCL 700.2202(2) states that if a decedent dies testate, his surviving spouse may elect against the will and claim “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.” The statute provides that a surviving spouse does not include an individual who was “willfully absent” from the decedent spouse for one year or more before the death of the decedent. MCL 700.2202(2)(e)(i). 
  
The Houghton Probate Court, following the test from In re Harris Estate, 151 Mich App 780; 391 NW2d 487 (1986), held that Arbutus was not “willfully absent” from Lyle, and thus could elect against his will. The probate court interpreted In re Harris to mean Arbutus would have had to act with the specific intent to permanently no longer be involved in the marriage and also be physically separated from Lyle to be considered “willfully absent.”  The Court of Appeals disagreed with the probate court’s interpretation, and held that Arbutus only needed to have “done something with the intent to bring about” her absence from the marriage to be “willfully absent.” Nothing in the statute required Arbutus to repeatedly attempt to maintain contact and proximity with Lyle against his wishes and despite his extramarital affair. The court determined that, although Arbutus may have acquiesced to Lyle’s wishes to live with his mistress outside their marriage, that acquiescence was not sufficient to establish willful absence and preclude her from electing against Lyle’s will. 
  
Although the probate court erred in its interpretation of required intent under MCL 700.2202(2)(e)(i), it was not a “clear error” that warranted relief, so the Court of Appeals affirmed the Houghton Probate Court’s decision allowing Arbutus to elect against her deceased spouse’s will.

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COA holds that a spouse be must willfully and physical absent from her decedent spouse for at least a year before death to be disqualified from electing against the decedent’s will

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COA holds that a spouse be must willfully and physical absent from her decedent spouse for at least a year before death to be disqualified from electing against the decedent’s will

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