Minnesota Probate Law | Second marriages, Surviving spouse, and Children

Minnesota Probate LawIn many Minnesota probate consultations that my office handles, there are often instances when a person who has died leaves behind many different people who may have a legal interest in that person’s estate.

People Who Have an Interest in the Deceased Person’s Probate Estate?

Common persons you may have an interesting deceased person’s estate, whether they had a Will or died without a will, are:  a surviving spouse, children, heirs, distributees, grantors, grantees, and other interested parties (creditors).

Furthermore, a common situation is when the person who died had children from a prior marriage but was remarried. Other times, the person may have been estranged from her spouse for multiple years but never divorced the person. These situations can create complicated issues with the deceased person’s probate administration. Often times, the result can be unfair to the surviving beneficiaries.

The major problem with surviving spouses and second marriages is that, if the person did not have a Will, and sometimes even if they did have a Will, the surviving spouse and second marriages is that the surviving spouse is entitled to benefits above and beyond what anyone else may receive. These estate benefits can include right to a portion of the deceased person’s homestead and what is called elective share of the probate estate.

Elective share of the probate estate

An elective share of the surviving spouse in addition to other benefits that the surviving spouse may receive, is based largely on the number of years in which the couple was married. Minnesota law is cited below for reference:

524.2-202 ELECTIVE SHARE.

(a) Elective share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse were married to each other: The elective-share percentage is:
Less than one year Supplemental amount only
One year but less than two years Three percent of the augmented estate
Two years but less than three years Six percent of the augmented estate
Three years but less than four years Nine percent of the augmented estate
Four years but less than five years 12 percent of the augmented estate
Five years but less than six years 15 percent of the augmented estate
Six years but less than seven years 18 percent of the augmented estate
Seven years but less than eight years 21 percent of the augmented estate
Eight years but less than nine years 24 percent of the augmented estate
Nine years but less than ten years 27 percent of the augmented estate
Ten years but less than 11 years 30 percent of the augmented estate
11 years but less than 12 years 34 percent of the augmented estate
12 years but less than 13 years 38 percent of the augmented estate
13 years but less than 14 years 42 percent of the augmented estate
14 years but less than 15 years 46 percent of the augmented estate
15 years or more 50 percent of the augmented estate

(b) Supplemental elective-share amount. If the sum of the amounts described in sections 524.2-207,524.2-209, paragraph (a), clause (1), and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under section 524.2-209, paragraphs (b) and (c), is less than $50,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in section 524.2-209, paragraphs (b) and (c).

(c) Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead rights and other allowances under sections 524.2-402,524.2-403 and 524.2-404, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

(d) Nondomiciliary. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.

Children and Heirs of the deceased person

The heirs of a deceased person are often upset to find out that a second spouse, who is the surviving spouse, will receive significant benefits from the estate. This is true even if the surviving spouse may have been estranged from the deceased person and the deceased person may have even contemplated divorce.

There are some exceptions to this rule, as there always is, and a qualified probate attorney should be consulted if you have questions.

Surviving Spouses, Probate in Minnesota

If you have specific questions about a deceased person’s estate, whether yours a surviving spouse or a child of a deceased person, please contact the probate attorneys and lawyers at Flanders Law Firm LLC to discuss your specific situation.  Another good resource is the Minnesota attorney general.

There may be a remedy that you are unaware of or had not considered. The firm offers free consultations to all potential clients. Call the law firm at 612-424-0398.

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