## Facts

- Frederick DeLand Leete III and Barbara R. Leete were married for 34 years; each had children from prior marriages.
- Frederick owned a Michigan cottage that had been in his family for about a century.
- In 1974, Frederick executed a will providing that Barbara would take the cottage only if she survived him by more than 30 days; otherwise, it would pass to his children.
- In 1996, Frederick and Barbara executed a quitclaim deed conveying the cottage to themselves “as tenants by the entirety,” along with tangible personal property in or on the premises.
- On February 28, 2008, Barbara was found dead and Frederick unconscious; both were affected by carbon monoxide poisoning.
- Barbara’s death certificate listed her date of death as February 28, 2008, but the time of death was unknown.
- Frederick was hospitalized and died on March 3, 2008, at 9:10 p.m.
- Barbara died intestate; Frederick’s 1974 will remained operative.
- Barbara’s estate claimed a one-half interest in the cottage under EPIC’s simultaneous-death statute because survivorship for 120 hours could not be established by clear and convincing evidence.
- The probate court granted summary disposition to Barbara’s estate, and Frederick’s estate appealed.

## Issues

1. Whether the probate court properly entered the summary disposition order under MCR 2.602(B)(2).
2. Whether EPIC’s simultaneous-death statute, MCL 700.2702, applies to property held by spouses as tenants by the entirety.
3. Whether clear and convincing evidence established that one spouse survived the other by 120 hours.
4. Whether an exception in MCL 700.2702(3), including language in Frederick’s pre-EPIC will, displaced the 120-hour rule.

## Decision

- The Michigan Court of Appeals affirmed the probate court’s order.
- The court held EPIC’s simultaneous-death provision applied to the cottage despite the pre-EPIC will and the tenancy-by-the-entirety form of title.
- Because 120-hour survivorship could not be established by clear and convincing evidence, each spouse’s one-half interest passed through his or her estate, converting the tenancy by the entirety into a tenancy in common.
- The court rejected the asserted statutory exception; Frederick’s will did not expressly govern the survivorship failure for the tenancy-by-the-entirety interest.
- The court found no reversible procedural defect in the entry of the order under MCR 2.602(B)(2).

## Legal Principles

- Under MCL 700.2702(1), when it cannot be established by clear and convincing evidence that one of two co-owners with survivorship rights survived the other by 120 hours, each co-owner’s one-half interest passes through that co-owner’s estate as if that co-owner were the survivor.
- EPIC applies broadly to probate matters and to governing instruments executed before EPIC’s effective date unless a contrary intent is clearly shown.
- A tenancy by the entirety’s survivorship feature does not control when EPIC’s 120-hour survivorship requirement is not met; the ownership is treated as a tenancy in common for distribution through the estates.
- The MCL 700.2702(3) exception requires explicit instrument language governing simultaneous or common-disaster deaths (or an explicitly required survival period) applicable to the transfer at issue; a general survival clause in a will does not necessarily displace EPIC for jointly held survivorship property.

## Conclusion

Because survivorship for 120 hours could not be proven by clear and convincing evidence, EPIC required treating each spouse’s interest in the tenancy-by-the-entirety cottage as passing through his or her estate, resulting in each estate owning an undivided one-half interest as tenants in common.


In re Leete Est., 290 Mich. App. 647, 803 N.W.2d 889 (Mich. Ct. App. 2010)