During probate, the estate’s personal representative locates and assesses the deceased person’s property. However, not all property becomes part of the probate estate. The personal representative determines whether property is probate or non-probate. He or she must then determine how to apply the Minnesota Elective Share Statute.
The Elective Share Statute Says . . .
The surviving spouse of a deceased Minnesota resident has the right to take a portion of the decedent’s estate, which is called the elective-share amount. This is allowed over and above what the surviving spouse receives due to the deceased spouse’s Will or through intestate succession.
The elective-share amount varies depending on how long the decedent and surviving spouse were married. For example, a surviving spouse married one year, but less than two years, receives three percent of the augmented estate. If the couple had been married for 15 years or more, the survivor receives 50 percent of the augmented estate.
Calculating the elective share is more complicated than it sounds. First, the share is based on the augmented estate. Non-probate assets are included when totaling up the augmented estate. For example, accounts with beneficiary designations are included in the augmented value, although the accounts transfer directly to beneficiaries without going through probate. In addition, certain property transferred by the decedent during the marriage may be included in the augmented estate.
The Minnesota Elective Share Statute in Action
This law is intended, at least in part, to protect the surviving spouse. In cases where the deceased spouse accidentally or intentionally disinherited their spouse, the spouse receives at least a portion of the estate.
For example, James and Margaret were married for 20 years. After they became estranged, James changed the beneficiary designations on all his financial accounts and insurance policies. He named his children from a prior marriage as sole beneficiaries. However, when he passed away shortly thereafter, Margaret was able to take an elective share from James’s augmented estate. In addition, Margaret claimed certain other exempt property, including the house and one car.
The Minnesota Elective Statute in Probate and Estate Planning
This law may affect you, whether you are making your estate plans or are involved in the probate of your spouse’s estate. We urge you to consult with one of our attorneys as soon as possible. To set up an appointment, call us at 612.888.1000 or send us an email at firstname.lastname@example.org. Our main office is in Minneapolis, with other offices located in Maplewood, Cambridge, Edina, and Mendota Heights.