Otherwise, even if you specifically omit your spouse in your Will, your surviving spouse has up to 9 months after your death to “elect against the Will” and seek the surviving spouse’s so-called “elective share”.
Calculating the elective share is a complicated process, but generally and loosely speaking, the Court looks at the combined assets of the deceased and surviving spouse. The Court then applies a certain percentage against that number for the award to the surviving spouse. The size of the percentage varies based on the number of years of marriage. The percentages start at 3% for one year of marriage. The maximum percentage is 50% for 15 or more years of marriage.
If there is no Will, the surviving spouse is entitled to the deceased’s entire estate if the deceased has no surviving descendants, or if all surviving descendants of either of them are descendants of both of them.
There’s a different Minnesota law when there is no Will and it’s a blended family situation. Thus, if either the deceased or surviving spouse has surviving descendants that are not also descendants of their spouse, then the surviving spouse receives the first $225,000 of the deceased’s estate plus one-half of any balance of the deceased’s estate.
The surviving spouse may also have certain rights in the homestead, and in certain exempt property such as personal property and an automobile. The surviving spouse and any minor children that the deceased was supporting may also be allowed a “reasonable family allowance” in cash from the estate for 1 year if the estate is insolvent and for 18 months if the estate is solvent. The amount of the family allowance may be determined by the personal representative, but is not to exceed $2,300 per month under Minnesota law.
Net, net, if you desire to by-pass your spouse, the two of you need to sign a pre-nup or post-nup agreement. Note that Minnesota has specific requirements for completion of pre-nups and post-nups for these agreements to be considered valid.
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Bonnie Wittenburg, Wittenburg Law Office, PLLC, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 952-649-9771 firstname.lastname@example.org www.bwittenburglaw.com