By Ryan Damhof, Attorney at Veritage Law Group.
For a variety of reasons, clients may desire to leave their belongings directly to their children, bypassing a surviving spouse. This is most common when a spouse has children from a previous relationship and wants to ensure certain assets (family property or inheritances, for example) reach their biological children. In the absence of proper planning, Minnesota law may prevent this from happening. For married couples, Minnesota recognizes a “Spousal Elective Share,” meaning the surviving spouse has the right to a percentage of the deceased spouse’s assets. Through this law, property can transfer to the surviving spouse in one of two ways: as exempt property or as part of the elective share.
Exempt Property Rights
First and foremost, the law allows certain assets to be claimed by the surviving spouse regardless of their value. These assets, known as “exempt property,” include the house, one car, $15,000 worth of personal property, and an allowance of up to $2,300 per month for up to 18 months.
The law does protect, to some extent, the interest of the deceased spouse’s children. While the surviving spouse has the right to receive the home, the extent of the ownership depends on the decedent’s family structure. If, for example, the deceased spouse has children, the surviving spouse will only receive a life estate (meaning the rights to the property only for their life). In other words, the decease spouse’s children will not inherit the home until the surviving spouse has died. If the deceased spouse does not have any descendants, however, the surviving spouse receives full ownership to the home and may reallocate the home to the beneficiaries of their choice.
The Elective Share
The elective share ensures that the surviving spouse is not left with less than an amount deemed equitable based on the length of the marriage. The elective share is a minimum of $75,000 and is calculated on a graduating scale. A full table of Minnesota’s elective share percentages is included below.
| Length of Marriage | Elective Share Percentage |
| Less than one year | Supplemental amount |
| One year | Three Percent |
| Two years | Six Percent |
| Three years | Nine Percent |
| Four years | 12 Percent |
| Five years | 15 Percent |
| Six years | 18 Percent |
| Seven years | 21 Percent |
| Eight years | 24 Percent |
| Nine years | 27 Percent |
| Ten years | 30 Percent |
| 11 years | 34 Percent |
| 12 years | 38 Percent |
| 13 years | 42 Percent |
| 14 years | 46 Percent |
| 15 years or more | 50 Percent |
The calculation of the elective share is above and beyond the exempt assets discussed above. This means, for example, spouses married for fifteen years or more can receive the house, one car, $15,000 of personal property, and an allowance up to $41,400 prior to electing to receive 50% of the remaining assets of the deceased spouse’s estate. For many estates, this may comprise a large majority of the deceased spouse’s assets.
Waiver of Election
If desired, the Minnesota Spousal Election can be waived. This can be done through either a prenuptial agreement, a postnuptial agreement, or through a consent signed during the preparation of an estate plan. Such waiver can include either or both rights to exempt property and the elective share. Before waiving your rights to your spouse’s property, it is advisable to be well informed as to potential consequences by speaking to an attorney experienced in Minnesota estate planning laws.