Many of our married clients have children that are not the children of both the husband and wife. Knowing many of these families personally, I know the joy that the parents have in treating both their own children, as well as their step-children, as equal members of the household. While many of our married clients come into a marriage with the idea that all assets are “ours” rather than “mine or yours,” the law does not necessarily view the assets in this manner, and so married couples should be aware of the following legal issues. Unfortunately, these rules could serve to disrupt an estate plan that both the husband and wife had agreed upon during their joint lifetimes.
Right to Re-Designate Assets Following First Death
First, If a deceased spouse’s assets are given to a surviving spouse as the surviving spouse’s outright property, then the surviving spouse has the legal right to not only consume the assets, and gift assets as he or she sees fit, but also re-designate the recipients of his or her assets at the subsequent death. From a legal perspective, this means that a surviving spouse could legally disinherit a deceased spouse’s children or other family members.
Right of Surviving Spouse Over Other Beneficiaries
Second, Minnesota law requires that, in the absence of a legally-binding agreement between the husband and wife to the contrary, a surviving spouse is legally entitled to receive certain of the deceased spouse’s assets. Even where a married couple has stated, in their respective Wills or Trusts, that all of the deceased spouse’s assets should be distributed to the deceased individual’s children at death, if no marital trust or other legal agreement was in place at death, the surviving spouse is legally entitled to a certain percentage of the deceased spouse’s assets. Under current Minnesota law, these assets are as follows:
- Homestead: The surviving spouse is entitled to the homestead property.
- Personal Property: One automobile, regardless of value, and up to $15,000 in personal property items.
- Family Allowance. The surviving spouse is entitled to receive amounts necessary for living expenses for 12 to 18 months, depending upon the circumstances.
- Supplemental Share Amount: Finally, and perhaps most significantly, the surviving spouse is entitled to a certain percentage of additional assets of the deceased spouse. This additional supplemental amount is based upon the length of the marriage at death. The surviving spouse may be entitled to 3.0% if the marriage had lasted less than one year and up to 50% if the marriage had lasted for at least 15 years.