Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Wills: Ensuring the Spousal Share

Minnesota law does not require anyone to provide for their spouse in their will, but the law does offer safeguards to ensure a surviving spouse receives an equitable share.  The surviving spouse has a right of election, to take a percentage of the augmented estate, based on the length of the marriage.  The augmented estate generally covers all of the decedent’s assets, and it specifically includes nonprobate transfers to others.

The surviving spouse makes this election by petitioning to the court, and giving notice to the decedent’s personal representative.  This petition must be filed within nine months of the decedent’s death, or within six months after the probate of the decedent’s will, whichever is later.  If the petition is filed more than nine months after the date of the decedent’s death (even if the six-month, post-probate deadline has yet to expire) then the decedent’s nonprobate transfers to others are not included within the augmented estate.

Decedent’s nonprobate transfers to others generally comprise retirement accounts, bank accounts, or life insurance with beneficiary or pay-on-death designations.  This would include real estate that transfers outside of probate due to joint tenancy or a transfer-on-death deed (TODD).  A decedent’s nonprobate transfers to others generally constitute a majority of the estate, making time of the essence when filing the petition.

There are limited circumstances where a surviving spouse, for good cause, may petition the court for an extension of time to include the decedent’s nonprobate transfers to others.  The subsequent beneficiaries of the nonprobate transfers will likely contest this extension.  Avoid the hassles and uncertainty of litigation by ensuring that petitions for elective shares are filed within nine months of the decedent’s death.  It is a good way to avoid a slam-dunk malpractice claim.

Brian Hage

Mitchell Bruder & Johnson

New Brighton

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