Minnesota Surviving Spouses

Minnesota Surviving Spouses

Minnesota Surviving Spouses

Minnesota Surviving Spouses – Statutory Rights

A spouse who survives the death of a Minnesota decedent will have a number of statutory rights which may provide financial resources to the surviving spouse over and above those rights that may be available to the spouse pursuant to:

Minnesota Surviving Spouses – Intestate Succession

If a Minnesota decedent dies owning property in Minnesota which is not subject to:

  • homestead rights,
  • exempt property rights,
  • family maintenance allowance rights,
  • elective share rights,
  • joint tenancy,
  • a payable on death beneficiary designation,
  • other transfer on death provision, or
  • Distribution pursuant to the terms of a properly executed Minnesota Will,

(the “intestate estate”), the decedent’s property will be subject to the Minnesota laws of intestate succession.

Minnesota Surviving Spouses – Intestate Share

Under Minnesota law, the intestate share of the surviving spouse will vary depending on the identity of those persons, if any, who are descended from:

  • the decedent, and
  • the surviving spouse.

(i)    No Surviving Descendents

If the decedent has no surviving descendents, the share of the surviving spouse would be the entire intestate estate.

(ii)    All Joint Descendents

Alternatively, the share of the surviving spouse would also be the entire intestate estate if:

  • all of the decedent’s surviving descendents were also descended from the surviving spouse, and
  • the surviving spouse had no other descendent who survived the decedent.

(iii)    All Descendents Are Not Related

However,

  • if all of the decedent’s surviving descendents were also descended from the surviving spouse, but
  • the surviving spouse had at least one surviving descendent who was not also descended from the decedent,

then the share of the surviving spouse would be:

  • the first $225,000 of the intestate estate, plus
  • one-half of the balance of the intestate estate,

and the decedent’s descendents would be entitled to the remainder of the intestate estate.

Likewise, if at least one of the decedent’s surviving descendents was not descended from the surviving spouse, then the share of the surviving spouse would be:

  • the first $225,000 of the intestate estate, plus
  • one-half of the balance of the intestate estate,

and the decedent’s descendents would be entitled to the remainder of the intestate estate.

Put another way, if either the decedent, or the surviving spouse, has descendents who were not descended from the other spouse, then the share of the surviving spouse would be as identified in the preceding paragraph.

Minnesota Surviving Spouses – The Elective Share

A surviving spouse may have a statutory right for a limited period of time after the decedent’s death, to elect to receive a certain percentage of an amount determined pursuant to a statutory formula (the “augmented estate.”)

This elective share right is designed to protect a surviving spouse from being:

  • completely disinherited by the decedent spouse, and
  • left without any share of the family assets.

However, the elective share right to a percentage of the “augmented estate” will vary from 3% to 50% depending on the length of the marriage.

Minnesota Surviving Spouses – The Homestead

A surviving spouse has a statutory right – for a limited period of time after the decedent’s death – to elect to receive certain rights in the decedent’s homestead, including a manufactured home which is the family residence.

(i)    No Surviving Descendents

If a decedent is not survived by any descendents, the surviving spouse would be entitled to receive a fee ownership interest in the entire homestead.

(ii)    At Least One Surviving Descendent

However, if a decedent is survived by a spouse and one or more descendents:

  • the surviving spouse would be entitled to receive a life estate in the homestead, and
  • the decedent’s descendents (the “remainder persons”), would be entitled to equally share a remainder interest in the homestead.

(iii)    Life Estate Interest

A life estate will provide the surviving spouse with:

  • the right to live in the homestead until his or her death, and
  • a certain percentage of the sale proceeds upon any sale prior to the death of the surviving spouse – which percentage will decline over time.

However, during the surviving spouse’s lifetime, he or she would be responsible for paying the property taxes, insurance, maintenance expenses, and utilities with respect to the homestead.

(iv)    Remainder Interest

Upon the death of the surviving spouse, the life estate interest would terminate, and title to the homestead would be completely vested in the remainder persons – upon the filing of:

  • a certified copy of a death certificate which identified the death of the surviving spouse, and
  • an Affidavit of Survivorship identifying those remainder persons who survived the spouse’s death.

However, the interests of the remainder persons in the homestead would be subject to any Medical Assistance lien which was effective against the life estate interest of the surviving spouse.

Minnesota Surviving Spouses – The Family Allowance

The surviving spouse may have the right to receive a support and maintenance “family allowance” from the decedent’s estate during the period of estate administration.

(i)      Supplemental in Nature

The family allowance may be a significant right for the surviving spouses in an estate, and when available, is in addition to the surviving spouse’s rights in:

  • any homestead,
  • any exempt property,
  • any assets to be received by Will or pursuant to the laws of intestacy, and
  • any assets to be received pursuant to an elective share.

(ii)     Term Payable

The family allowance would be payable to the surviving spouse:

  • for one year if the estate is inadequate to discharge allowed claims (insolvent); or
  • for 18 months if the estate is adequate to discharge allowed claims (solvent).

(iii)    Determination of Amount

The personal representative has the power to determine the amount of the family allowance which is to be paid to a surviving spouse, in an amount not to exceed $1,500 per month.

However, either the Personal Representative, or the surviving spouse, can petition the court for payment of a family allowance in an amount in excess of $1,500 per month.

(iv)    Priority for Payment

The family allowance – as properly determined – has priority for payment ahead of all other debts and estate obligations, including probate attorney fees, court costs, and even funeral expenses.

Minnesota Surviving Spouses – Exempt Property

In addition to:

  • the homestead,
  • the family allowance,
  • any assets to be received by Will or pursuant to the laws of intestacy, and
  • any assets to be received pursuant to an elective share,

the surviving spouse will be entitled to receive:

  • personal property not exceeding $15,000 in value, in excess of any security interests, in household furniture, furnishings, appliances, personal effects – subject to an award of sentimental value property in favor of the decedent’s children – or other personal property, plus
  • one automobile – without regard to value,

all of which will be exempt from all of the decedent’s creditors.

Conclusion – Minnesota Surviving Spouses

A spouse who survives the death of a Minnesota decedent will have a number of statutory rights which may provide financial resources to the surviving spouse over and above those that may be available to the spouse pursuant to the decedent’s Will, or the laws of intestate succession.

However, certain documents must be prepared, filed, and served upon various parties within specified time limits in order for the surviving spouse to enjoy such statutory rights.

Therefore, it is important to promptly consult with a Minnesota attorney in order to exercise such rights.

If you are a surviving spouse with respect to a Minnesota decedent, please contact attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Copyright 2018 – All Rights Reserved

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

Phone:  763-780-8390    Fax: 763-780-1735

gary@dahlelaw.com

Topics of Interest:

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. Minnesota probate law involves many complex legal issues. If you have a specific legal problem about which you are seeking advice, either consult with your own attorney or retain an attorney of your choice. Gary C. Dahle, Attorney at Law, is licensed to practice law in the State of Minnesota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web site of Gary C. Dahle, Attorney at Law – https://www.dahlelaw.com – may be held to be a request for information. However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on https://www.dahlelaw.com, does not constitute legal advice, or establish an attorney/client relationship. Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

If you are not a current client of Gary C. Dahle, Attorney at Law, please do not use the e-mail links or forms to communicate confidential information which you wish to be protected by the attorney-client privilege. Please use caution in communicating over the Internet. The Internet is not a secure environment and confidential information sent by e-mail may be at risk. Gary C. Dahle, Attorney at Law, provides the http://www.dahlelaw.com web site and its contents on an “as is” basis, and makes no representations or warranties concerning site content or function, including but not limited to any warranty of accuracy, or completeness.

Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present:  http://www.health.state.mn.us/divs/chs/osr/DecdIndex/dthSearch.cfm

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificates – http://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Records – https://moms.mn.gov/