The Minnesota Probate Code prevents a spouse from unilaterally disinheriting his or her spouse (intentionally or accidentally), by providing a surviving spouse with the ability to exercise the right to an elective share of a deceased spouse’s estate. For a surviving spouse, pursuing the right to a spousal elective share is subject to complex statutory provisions, including a requirement for filing an action in court to exercise the right.
The spousal elective share provisions in Minnesota law give a surviving spouse the right to receive a percentage of a deceased spouse’s assets, even if the decedent attempted to disinherit the surviving spouse or did so accidentally. The Probate Code provisions for a surviving spouse’s elective share apply if a decedent resided in Minnesota at the time of death.
Under the law, the elective share is calculated as a percentage of the “augumented estate.” The percentage varies, depending on the length of the marriage. The longer the marriage lasted, the higher the percentage is. The maximum percentage is 50%, which applies if the marriage lasted 15 years or more. Fewer years of marriage result in lower percentages.
The statute also sets a minimum elective share of $75,000. In some situations, if the elective share is less than $75,000, the surviving spouse may be entitled to a supplemental elective-share amount under the statute.
The statute defines augmented estate for purposes of the calculating the surviving spouse’s share. It includes both probate and non-probate assets. The law also includes complex rules relating to exclusions, valuation, and overlapping application, as well as provisions relating to the sources from which an elective share is payable.
If the surviving spouse exercises the right to an elective share, other statutory rights and allowances are not affected. Those amounts are in addition to the elective-share amount and any supplemental elective-share amounts.
The right of election is personal to the surviving spouse and may be exercised only during his or her lifetime. In certain circumstances set forth in the statute, the right may be exercised on behalf of a protected person by an order of the court. In addition, specific complex rules apply to exercise of the spousal elective share by surviving spouse who is receiving medical assistance.
The spousal elected share is available whether the decedent had a will or died intestate. For an intestate estate, the surviving spouse may decide make the election if there are no probate assets in the estate.
A surviving spouse may waive the right of election, in whole or in part. Generally, a waiver occurs in a prenuptial agreement, postnuptial agreement, or a consent agreement signed as part of an estate plan.
An effective waiver requires fair disclosure of assets between the parties. The validity or extent of a purported waiver may be an issue in a spousal elective share proceeding brought by a surviving spouse.
If a surviving spouse wishes to exercise the right to receive an elective share of an estate, the process begins by filing a petition in probate court. The Probate Code includes rules applicable to the proceeding, such as requirements for notice to persons interested in the estate and persons whose interests are affected adversely by the surviving spouse’s election.
The statute requires that the surviving spouse file the petition within nine months after the date of decedent’s death, or within six months after probate of the decedent’s will, whichever date is later. The court may grant an extension of time under specific circumstances detailed in the law.
After all interested and affected parties are notified, the court holds a hearing on the petition. Following the hearing, the court determines the surviving spouse’s elective-share and any supplemental elective-share amounts. The judge also orders payment from the estate in accordance with the statutory provisions.
A surviving spouse’s decision about whether to pursue the spousal elective share requires legal counsel from an attorney knowledgeable about the applicable statutory provisions and experienced in Minnesota probate and estate litigation. The applicable laws are extremely complex. The court proceedings are likely to be very complicated as well.
Calculating the elective share requires gathering all relevant evidence about the decedent’s assets and performing detailed analysis of the estate. Statutory rules about what is included in the augmented estate must be carefully followed. Equally complex is ascertaining the sources of payment for the elective share.
A surviving spouse should not attempt to pursue an elective share without legal representation. The decision to take the spousal elective share should be made only after extensive consideration and discussion with qualified legal counsel. Because of the time limits for bringing an action, as well as the fact that property of the estate may be distributed shortly after death, talking with an attorney at the earliest opportunity is highly recommended.
I focus my practice on the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul. If you would like to discuss a situation involving the laws and process for a surviving spouse’s right to an elective share, please contact me at (612) 677-8351 or by email at email@example.com. I welcome inquiries from clients and referring attorneys throughout the State of Minnesota.
The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer