Elective Share of Spouse: What You Should Know

The amount that a surviving spouse can claim of the estate of a deceased spouse in Minnesota depends on the length of the marriage. The purpose of the spousal elective share is to prevent someone from secretly cutting a spouse out of any inheritance.

As with most laws, there are exceptions and caveats. A Minnesota estate planning attorney can talk to you about what you should know about our state’s elective share of a spouse.

An Overview of Minnesota’s Elective Spousal Share

Our state laws control how much money a widow or widower can choose to receive from the estate of a deceased spouse. If the decedent died while domiciled in a state other than Minnesota, the laws of the state where the person died will determine the surviving spouse’s elective share.

The spousal share is in addition to the surviving spouse’s homestead rights and other allowances. The surviving spouse can choose to receive the amount left to him or her in the decedent’s will or trust instead of the elective-share amount.

The elective share for a surviving spouse with a marriage that lasted less than one year before the decedent’s death will only be the supplemental share amount. For every year of marriage, the surviving spouse’s elective share increases by three or four percent of the decedent’s augmented estate. When the parties reach 15 years of marriage, the elective share becomes 50 percent of the augmented estate and remains at that level thereafter.

For example:

  • For a marriage that lasted between one year and one year plus 364 days, the elective share is three percent.

  • At five years, the percentage goes up to 15 percent of the augmented estate.

  • At the 10-year point, the surviving spouse could elect 30 percent.

Every year between 10 and 15 years increases the share by four percent.

An Explanation of the Supplemental Elective Share

When the surviving spouse would receive less than $75,000 through the standard elective share, the surviving spouse can receive a supplemental amount that would bring the total spousal share up to $75,000.

Minnesota’s Spousal Share Is Elective, not Automatic

Some people mistakenly think that the elective share places a limit on the amount that a surviving spouse can inherit, but that is not the case. Many married people make wills or living trust agreements that leave everything or the lion’s share of the estate to their surviving spouse. The elective share provides protection for people whose deceased spouse wrote a will or trust agreement that gives a substantial portion of the decedent’s estate to someone other than the surviving spouse.

Sometimes spouses intentionally make wills that very little, if anything, to each other. The spouses might have substantial individual assets and nominal debts, so they want the bulk of the estate to go directly to their children, grandchildren, charities, or other beneficiaries.

The law does not force a surviving spouse to receive the spousal elective share. The spouse has the right to receive at least the amount of the elective share and the right to decline to exercise this option.

How the Elective Share Works if You Have a Prenuptial Agreement

Prenuptial agreements (also called antenuptial agreements) and postnuptial agreements typically contain a waiver of the right of spousal share election. The waiver can be a partial or complete waiver of the elective right.

A Minnesota estate planning attorney can help you create an estate plan that fits your situation and goals and administer the estate when the time comes. Get in touch with our office today.