The Minnesota Spousal Elective Share.

Under Minnesota law, a surviving spouse has rights to receive certain property left by the deceased spouse if the latter has disinherited the spouse. It could be that the decedent had intentionally left assets to the children, side-stepping the spouse. Or, it might be inadvertent, a case of the decedent not having a valid Will (intestacy), or having a poorly-written Will. In either case the surviving spouse can receive a certain percentage of the assets by means of the spousal elective share. The law gives the surviving spouse power to acquire those assets by claiming two asset components: exempt property and the elective share.

Exempt Property.

Minnesota statutes allow the surviving spouse to claim certain "exempt property" assets, which include, without regard to value, the homestead, one automobile, $15,000 of personal property, and a family allowance of up to $2300 per month for up to 18 months. For many estates, this is a significant portion--if not the majority--of the total assets. If the couple have children, the spouse receives the home under a life estate, then it passes to the children after the spouse dies. If there are no children, the spouse can leave the homestead to beneficiaries of choice.

Elective Share.

The statutes also provide an elective share calculated on a scale based on the number of years of marriage prior to the decedent's death. The elective share is no less than a "supplemental share" of $75,000. The statutes determine the spouse's elective share based on the augmented estate, which includes both probate and non-probate assets. If the decedent and surviving spouse were married less than 1 year, the elective share percentage is the supplemental amount only--$75k. If the duration of marriage is longer than 1 year, the elective share is determined as a percentage of the augmented estate, as follows:

If the decedent and spouse were married to each other:

• Less than 1 year: Supplemental amount of $75,000 only
  
• At least 1 year: 3% of the augmented estate
• At least 2 years: 6% of the augmented estate
• At least 3 years: 9% of the augmented estate
• At least 4 years: 12% of the augmented estate
• At least 5 years: 15% of the augmented estate
• At least 6 years: 18% of the augmented estate
• At least 7 years: 21% of the augmented estate
• At least 8 years: 24% of the augmented estate
• At least 9 years: 27% of the augmented estate
• At least 10 years: 30% of the augmented estate
• At least 11 years: 34% of the augmented estate
• At least 12 years: 38% of the augmented estate
• At least 13 years: 42% of the augmented estate
• At least 14 years: 46% of the augmented estate
• 15 years or more: 50% of the augmented estate

Thus, if a couple were married at least 15 years before the decedent passed away, the surviving spouse would receive the house, one car, $15,000 in personal property, an allowance of $41,400 ($2300 x 18), AND could elect to take 50% of the augmented estate.

The spousal election can be waived by means of either an antenuptial agreement, postnuptial agreement, or by consent in an estate plan.

Premarital Will.

If the decedent had executed a Will before marriage (and never executed a new Will during the marriage), the spouse receives a share of the probate assets equivalent to a share the surviving spouse would have inherited had the decedent died intestate. If the decedent leaves no surviving descendants, or has only joint descendants (descendants that were also descendants of the surviving spouse), the surviving spouse gets 100% of the intestate estate. The law treats the estate as if the pre-marital Will never existed.

For example, Ted has a Will executed before he married Vicky. Neither Ted nor Vicki had children previous to their marriage to one another. Then Ted and Vicki have children together. Ted never executes a new Will while he is married, and he later dies, leaving an estate worth $600,000. Vicki receives the entire $600k estate.

However, if all descendants are not related (there are surviving joint descendants, plus at least one surviving descendant of either spouse alone), the surviving spouse receives the first $225,000 of the intestate estate, plus 1/2 of the balance of the intestate estate. The decedent's descendants would receive the remainder, but not the descendants of the surviving spouse alone.

For example in this case, Ted and Vicki each have one child from previous relationships. Ted has his Will from before his marriage to Vicki. Then Ted and Vicki have two children together, but Ted never changes his Will. Ted dies. If the intestate estate is valued at $600,000, Vicki would receive $412,500, and the two children of both Ted and Vicki, along with Ted's previous child would share the remaining $187,500, or $62,500 for each child. Vicki's previous child would not get a share.

As you can see, the possibility of these types of situations are good reasons to make sure you have a robust estate plan in place, including a valid Will. It is important to revisit your Will any time your family status changes. Marriage, divorce, new children and grandchildren are all events that should trigger a revision of your estate plan. A good attorney can help you get started.