Pending case: In re Cliffman estate

John Gordon Cliffman died in an automobile accident in 2012. He had no surviving spouse or children. The parties to this case were his two sisters, on one side, and the four sons of his wife Betty, who had died in 1996, on the other.

The claim of the estate against the driver at fault was settled for $300,000 without the filing of a lawsuit. This settlement and the initial allocation of the proceeds were approved by the probate court in December 2013. The sisters later filed a petition to set aside the order of allocation, arguing that Betty's sons were not proper recipients because they could not assert a claim under the Wrongful Death Act. The probate court agreed and granted the petition.

The Wrongful Death Act is codified as part of the Revised Judicature Act, MCL 600.2922. The provisions of section 2922-3 include the following:

(3) Subject to sections 2802 to 2805 of the estates and protected individuals code, 1998 PA 386, MCL 700.2802 to 700.2805, the person or persons who may be entitled to damages under this section shall be limited to any of the following who suffer damages and survive the deceased:
(a) The deceased's spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.
(b) The children of the deceased's spouse.
(c) Those persons who are devisees under the will of the deceased, except those whose relationship with the decedent violated Michigan law, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

Considering the statutory language, one might think that the result is clear. Betty's sons were of course "the children of the deceased's spouse," weren't they? But the Michigan Court of Appeals, in the case of In re Combs Estate, 257 Mich App 622, 669 NW2d 313  (2003), had held that once the spouse is deceased, she is no longer the spouse, and that the language of section 2922-3-b should be limited to the children of a spouse who survived the deceased. The Court in Cliffman described the Combs rule as follows:

Given that death terminates a marriage, upon one party’s death, the individuals are no longer married and the surviving individual no longer has a “spouse” within the meaning of MCL 600.2922(3)(b).

The sons had to acknowledge that the Combs decision precluded their claim to participate in the distribution, but they argued that that case had been wrongly decided. The Court of Appeals, of course, was bound by Combs, and affirmed the decision of the probate court.

The case is now before the Michigan Supreme Court. On March 23, 2016, it issued an order directing the Clerk to set the application for leave to appeal for oral argument. The Order included this direction:

The parties shall file supplemental briefs within 42 days of the date of this order addressing whether MCL 600.2922(3)(b) allows stepchildren of a decedent to make a claim for damages where the natural parent predeceased the decedent, and if so, whether this Court should overrule In re Combs Estate, 257 Mich App 622 (2003). 

The State Bar Probate and Estate Planning Section has filed an amicus brief on the case.