Cox v. Burton
Cox v. Burton
Opinion of the Court
Respondent, the personal representative of decedent’s estate, appeals from a probate court order awarding petitioner, decedent’s surviving spouse, a homestead allowance and family allowance.
The decedent, William F. Burton, died on March 29, 1981, and was survived by his wife, Lillian E. Burton (petitioner). His will, dated July 14, 1978, was admitted to probate, and in it he left all of his tangible personal property to his wife. He left the remainder of his estate in trust for the support, comfort, and maintenance of his wife for her life
Petitioner has been in a nursing home since 1977 and is presently under a guardianship and conservatorship. Her sole income consists of social security payments in the amount of $424 per month and a pension in the amount of $255 per month. Petitioner’s bills for nursing home care and medicine amount to approximately $1,100 per month. She contributes approximately $610 per month toward the nursing home bill, and spends approximately $90 on personal needs. Medicaid pays the balance of her nursing home bill.
Dolores L. Cox, as the conservator of the estate of petitioner, filed a petition with the probate court for an order allowing petitioner a homestead allowance, exempt property, and a family allowance. The personal representative of the estate objected to the petition and filed a brief arguing that the homestead allowance should be charged against the home owned by petitioner as the survivor of the tenancy by the entireties and, also, that petitioner was not entitled to a family allowance. The probate court found that petitioner was entitled to a $3,500 cash allowance and that she was also entitled to a homestead allowance and a family allowance of $610 per month, retroactive to May, 1982.
Respondent first argues that the probate court improperly awarded petitioner a homestead allowance. At the time of the probate court order, § 285 of the Revised Probate Code provided in pertinent part:
"(1) The surviving spouse of a decedent who was
"(2) The homestead allowance is exempt from and has priority against the estate as provided in section 192. The homestead allowance is charged against any benefít or share passing to the surviving spouse or minor child by the will of the decedent, by intestate succession, or otherwise, but the allowance shall not be diminished if it is greater than the benefit or share.” MCL 700.285; MSA 27.5285. (Emphasis added.)
Appellant argues that a surviving spouse’s homestead allowance may be charged against will substitutes as well as benefits or shares passing by testate or intestate succession based on the phrase "or otherwise” contained in subsection (2). The probate court considered the meaning of the phrase "or otherwise” and determined that it should not include property passing to a surviving spouse by joint rights of survivorship.
The recent legislative amendment of § 285, 1984 PA 377, effective March 29, 1985, obviates the need to define "or otherwise”.
Appellant also argues that the probate court
Affirmed.
The amended version defines the phrase "or otherwise” as referring to several sections of the Revised Probate Code, none of which include property passing by will substitute. See MCL 700.285(2); MSA 27.5285(2).
Reference
- Full Case Name
- In re BURTON ESTATE COX v. BURTON
- Cited By
- 1 case
- Status
- Published