Michigan law, for title research

Is Michigan a community property state? No: divorce division, entireties deeds, and the end of dower

Every rule below is quoted from the Michigan Compiled Laws or another official source, linked and checked on the date shown. General information, not legal advice.

How does Michigan divide property on divorce?

By court judgment, not by a community property rule. MCL 552.19 lets the court, on annulment, divorce or separate maintenance, restore to either party the whole or such parts as it deems just and reasonable of the real and personal estate that came to either party by reason of the marriage, or award its value in money. MCL 552.23(1) adds that if what either party receives is insufficient for the suitable support of either party and the children of the marriage, the court may award more of either party's estate.

The court can also reach property titled to the other spouse. MCL 552.401 allows a decree to award a party all or part of the property owned by the spouse, as appears equitable under all the circumstances, if the party contributed to its acquisition, improvement or accumulation. Once final, that decree has the same force and effect as a quitclaim deed of the real estate from the spouse, which is why a title search reads the divorce file as part of the chain.

What happens to a Michigan entireties deed on divorce?

It changes by statute. MCL 552.102 provides that every husband and wife owning real estate as joint tenants or as tenants by entireties become, on divorce, tenants in common of that real estate, unless the decree of divorce otherwise determines its ownership. A judgment silent on the house therefore still changes how the title is held. If the pleadings ask, MCL 552.103 lets the court award the land to either party, order it sold and the proceeds divided, or appoint commissioners to partition it.

The probate code has a parallel rule. Divorce or annulment, by MCL 700.2807(1)(b), severs the former spouses' survivorship interests as joint tenants into tenancies in common, unless the express terms of a governing instrument, a court order or a contract on the marital estate provide otherwise. Subsection (2) says that does not affect an interest acquired for value and in good faith reliance on apparent title by survivorship, unless a writing declaring the severance is of record where such title is checked.

During the marriage, MCL 557.71 makes both spouses equally entitled to the income and to the control and management of property held by the entirety, and MCL 557.101 lets either spouse end the tenancy by conveying that spouse's interest to the other. A judgment against only one spouse does not reach it the usual way: a judgment lien, by MCL 600.2807(1), does not attach to an entireties interest unless the judgment is against both, and MCL 600.6023a exempts entireties real property from execution under a judgment against only one spouse.

How do Michigan spouses hold title together?

MCL 554.44 makes a grant of land to 2 or more persons an estate in common, not a joint tenancy, unless the deed expressly declares a joint tenancy. MCL 554.45 says that rule does not apply to mortgages, to grants in trust or to executors, or to grants to husband and wife, so the common-tenancy default does not govern a deed to a married couple. A title search reads the vesting words on each deed to spouses and checks whether a later divorce converted the estate.

Does property a Michigan spouse inherits stay separate?

The statute is written for a married woman. MCL 557.21(1), part of a 1981 act, provides that real or personal property a woman acquires before marriage, or after marriage through gift, grant, inheritance, devise or other manner, remains her property, and that she may sell, transfer, mortgage, convey, devise or bequeath it in the same manner and with the same effect as if she were unmarried. On divorce, the restoration and contribution statutes above still let the court award property between the parties.

Does Michigan still have dower?

Not for deaths since April 6, 2017. MCL 558.30, added by 2016 PA 489 effective that day, declares a wife's dower right abolished and unenforceable by statute or at common law. It does not apply to a dower already elected by a widow whose husband died before the amendment took effect, or to that widow's right to elect dower under MCL 700.2202. A title search for a death before that date checks whether a widow elected dower.

Does a spouse have to sign a Michigan homestead mortgage?

For the execution exemption, yes, with two exceptions. MCL 600.6023(1)(g) exempts a homestead of not more than 40 acres or 1 lot, not exceeding in value $3,500, from levy and sale under execution, but not from a mortgage lawfully obtained, and for purposes of that subdivision a mortgage is not valid without the signature of a married judgment debtor's spouse unless it secures purchase money, or it has been recorded with the register of deeds for 25 years with no notice of a claim of invalidity filed. A title search notes whether a spouse signed each mortgage on an occupied home.

What does a Michigan spouse inherit?

Without a will, MCL 700.2102(1) gives the surviving spouse the entire intestate estate if no descendant or parent of the decedent survives, the first $150,000 plus 1/2 of the balance if all of the decedent's descendants are also the spouse's, or if some but not all of them are not the spouse's, the first $150,000 plus 3/4 of the balance if only a parent survives, and the first $100,000 plus 1/2 of the balance if none of the descendants are the spouse's. MCL 700.1210 multiplies those figures by a cost-of-living factor the Department of Treasury publishes each year, rounded to the nearest $1,000, so the amount depends on the year of death. Separate from those shares, MCL 700.2402 gives a homestead allowance of $15,000, adjusted, and MCL 700.2404 exempt property up to $10,000 above security interests. MCL 700.2205 lets a spouse waive these rights.

With a will, MCL 700.2202(2) lets the spouse abide by it or take 1/2 of the intestate share, reduced by 1/2 of the value of property derived from the decedent. Subsection (7) includes a transfer at death through joint ownership or tenancy by the entireties, a transfer within two years before death to the extent subject to federal gift or estate taxes, and a transfer subject to a power retained by the decedent that makes it subject to federal estate tax. The election must be filed within 63 days after the date for presentment of claims or service of the inventory, whichever is later. A spouse who misses it is conclusively presumed to abide by the will, except in the instances MCL 700.2203 lists. For a decedent domiciled elsewhere, subsection (6) leaves the election to the law of that domicile.

Did Michigan ever have community property?

Yes, for less than a year. Act 317 of 1947, the Michigan Community Property Act, took effect July 1, 1947. Act 39 of 1948 repealed it, effective May 10, 1948, subject to saving provisions that remain in MCL chapter 557. The repealing section itself, 557.251, was later repealed in 1980, and the saving sections were not.

The repeal, by MCL 557.252, does not impair rights already acquired, except as the next two sections provide. Property that was community property at the repeal stays community property, by MCL 557.253, and the 1947 act continues in force for it. There is one large proviso. Unless the title instrument or other evidence of ownership expressly states the intent that it be community property, the property is deemed separate one year after the repeal took effect, according to the names on the instrument, unless a notice of claim was filed within that year with the register of deeds. For real property in another county, a duplicate went to that county's register. No disability or lack of knowledge suspended the time.

MCL 557.254 applies the same approach to property later derived from community property. If acquired after the one-year period, it is deemed separate unless its instrument expressly states the intent that it be community property. MCL 557.255 protects anyone relying on a spouse's right to deal with property standing in that spouse's name.

What about community property from another state?

Michigan sits off the IRS list, but Act 289 of 1975, MCL 557.261 to 557.271, governs one situation at death: property a married person acquired as community property under another jurisdiction's law. Michigan land falls inside when all or part of it was bought with the income or proceeds of that property, or can be traced to it, and only that proportionate part counts.

At the owner's death, half of covered property belongs to the survivor and cannot be left by will or pass by succession. The rest is the decedent's. MCL 557.264 also takes the decedent's half out of the survivor's right to elect against the will and says no estate of dower exists in it. Rebuttable presumptions help decide coverage: acquisition during marriage while domiciled where community property could then be acquired is presumed covered, and survivorship title taken while domiciled where it could not is presumed outside.

Where the decedent held title, a court order or a court-approved instrument can perfect the survivor's title. Where the survivor held it, MCL 557.266 allows an action to perfect title for the decedent's side. Where the seller or borrower has apparent title, neither a purchaser for value nor a secured lender takes subject to the other side's rights, and neither need inquire whether the seller or borrower acted properly. Creditors keep their rights, and spouses may still sever or alter their interests.

What a title search checks on a married Michigan owner

A title check before buying reads the vesting words on each deed to spouses, looks for a judgment of divorce that converted an entireties or joint tenancy deed into a tenancy in common or awarded the property by decree, notes whether a spouse signed each mortgage on the homestead, sorts judgments against one spouse from judgments against both, and checks probate records after a death. MCL 552.402 allows a court-attested copy of a contribution decree to be recorded in any county where the property lies. Whether a former spouse or surviving spouse still holds an interest is a legal conclusion for a Michigan attorney; the report shows the record it turns on.

A chain reaching back to 1947 and 1948 can also show a deed expressly stating an intent to create community property, or a notice of claim filed under MCL 557.253.

The Michigan marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; MCL 552.19, Restoration of real and personal estate to parties; MCL 552.401, Property owned by spouse; award to contributing party; MCL 552.23, Further award of real and personal estate; MCL 552.102, Realty owned jointly or by entireties; effect of divorce; MCL 557.101, Tenancy by entirety; termination; MCL 557.71, Equal rights of tenants by entirety; MCL 554.45, Land conveyance; exceptions to preceding section; MCL 554.44, Land conveyance to two or more persons; MCL 557.21, Status of property acquired by woman before or after marriage; MCL 558.30, Wife's dower right; abolishment; MCL 600.6023, Property exempt from levy and sale under execution; MCL 700.2102, Share of spouse; MCL 700.1210, Cost-of-living adjustment; MCL 700.2202, Election of surviving spouse; MCL 557.261; MCL 557.262; MCL 557.263; MCL 557.264; MCL 557.265; MCL 557.266; MCL 557.267; MCL 557.269; MCL 557.268; MCL chapter 557; MCL 557.252; MCL 557.253; MCL 557.254; MCL 557.255; MCL 700.2202; MCL 700.2203; MCL 700.2402; MCL 700.2404; MCL 700.2205; MCL 600.2807; MCL 600.6023a; MCL 700.2807; MCL 552.103; MCL 552.402. Each row links the section it summarizes.

Questions people ask

More on how Michigan property law shapes a title search: title research in Michigan.