Probate is often a part of the estate settlement process. Probate proceedings can be especially difficult on a surviving spouse. However, a surviving spouse may have certain statutory rights to a percentage of the decedent’s estate. In the state of Minnesota, elective share provides protection to a surviving spouse during the estate settlement process. If you are involved in a case where elective share may come into play, our lawyers are here to help.

The Right to Inherit

The state of Minnesota offers certain protection to a surviving spouse in the form of an elective share. Upon the death of a spouse, the state grants the surviving spouse the right to elect to receive a percentage of the decedent’s “augmented estate”.

The augmented estate is made up of the total value of the decedent’s real and personal property, including:

  • Net probate estate;
  • Non-probate transfers to the surviving spouse;
  • Non-probate transfers to others; and
  • Surviving spouse’s property and non-probate transfers to others

The surviving spouse may elect to between 3% and 50% of the augmented estate. The exact amount the spouse may elect is dependent on the length of the marriage. In Minnesota, a couple must be married for at least one year in order for the spousal elective share to come into play. If the marriage was between one and two years, the surviving spouse may only take 3% of the augmented estate.

In order to elect to receive the full 50%, the marriage must have lasted at least 15 years. The total value of the augmented estate will be reduced by:

  • Funeral and administrative expenses;
  • The homestead;
  • Family allowances and exemptions;
  • Liens and mortgages; and
  • Enforceable claims

In the event that a surviving spouse does choose to take an elective share, any individuals receiving property from the decedent’s estate are liable to make a proportional contribution to satisfy the total amount of the elective share.

In order for a surviving spouse to claim an elective share, he or she must file with the court and deliver a petition to the personal representative. This must be done within 9 months of the decedent’s death, or 6 months after the probate of the decedent’s Will, whichever date is later.

Filing for elective share is not always an easy process, and it’s best done with the help of a qualified and experienced probate attorney.

Free Consultation

Whether you are going through probate, or trying to understand your inheritance rights, our Minnesota estate planning lawyers are here to help. We’ve represented thousands of clients since 1998. Our lawyers will work with you to make sure you are exercising your full inheritance rights. Contact the Brown Law Offices, P.A. at 763-323-6555 for a free consultation.