A Surviving Spouse's Elective Share in Minnesota

How does the elective share work in Minnesota?

The surviving spouse of a person who died domiciled in Minnesota may take a percentage of the augmented estate, set by the length of the marriage, whatever the will says. Under Minn. Stat. § 524.2-202, paragraph (a), “The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other.”

The schedule in paragraph (a) starts at “Supplemental amount only” for a marriage of less than one year and rises with each year of marriage to “50 percent of the augmented estate” for a marriage of 15 years or more. Three other rules in the same section shape the claim:

1. A floor for short marriages and small estates. Under paragraph (b), if the sum the statute counts, which includes the spouse’s own property, what passes to the spouse, and the part of the share payable from others, “is less than $75,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $75,000, minus the sum of the amounts described in those sections.”
2. Homestead and allowances come on top. Paragraph (c) provides: “If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead rights and other allowances under sections 524.2-402, 524.2-403 and 524.2-404, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.”
3. Domicile controls. Under paragraph (d), “The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.”

The percentage applies to the augmented estate, which counts the surviving spouse’s own property too, and under § 524.2-209, paragraph (a)(3), “amounts included in the augmented estate under section 524.2-207 up to the applicable percentage thereof” are applied first toward the share. A spouse with substantial assets of their own may therefore collect little from the decedent’s estate by electing.

What property counts in the augmented estate?

The augmented estate adds together the decedent’s probate estate, much of what the decedent passed to others outside probate, what passed to the spouse outside probate, and the surviving spouse’s own property. Under Minn. Stat. § 524.2-203, it “consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse’s property and nonprobate transfers to others.”

Each group has its own section:

1. The decedent’s net probate estate. Under Minn. Stat. § 524.2-204, “The value of the augmented estate includes the value of the decedent’s probate estate, reduced by funeral and administration expenses, the homestead, family allowances and exemptions, liens, mortgages, and enforceable claims.” Minn. Stat. § 524.2-201, clause (7), defines the probate estate as property that “would pass by intestate succession if the decedent dies without a valid will.”
2. Property passing to others outside probate. Minn. Stat. § 524.2-205 counts “the value of the decedent’s nonprobate transfers to others, other than the homestead.” Its list includes “The decedent’s interest in property held with the right of survivorship,” life insurance “if the decedent owned the insurance policy immediately before death,” and “amounts under any public or private pension, disability compensation, benefit, or retirement plan or account, excluding the federal Social Security system.”
3. Property the decedent alone controlled. Clause (1)(i) of § 524.2-205 counts “Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment.” Section 524.2-201, clause (6), defines that power as one “to create a present or future interest in the person.” A power to take property back for oneself fits that definition, so property in a revocable trust that the decedent alone could revoke can count here.
4. Lifetime transfers that still count. Paragraph (2) reaches “Property transferred in any of the following forms by the decedent during marriage, to the extent not included under paragraph (1),” and its clause (i) lists “Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent’s right terminated at or continued beyond the decedent’s death.” Paragraph (3) reaches “Property that passed during marriage and during the two-year period next preceding the decedent’s death as a result of a transfer by the decedent if the transfer was of any of the following types.” For outright gifts in that period, “The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.”
5. What passed to the spouse outside probate. Under Minn. Stat. § 524.2-206, “Excluding the homestead and property passing to the surviving spouse under the federal Social Security system, the value of the augmented estate includes the value of the decedent’s nonprobate transfers to the decedent’s spouse.”
6. The surviving spouse’s own property. Under Minn. Stat. § 524.2-207, paragraph (a)(1), the augmented estate includes “property, other than the homestead, that was owned by the surviving spouse at the decedent’s death, including the surviving spouse’s interest in property held with right of survivorship.”

Two exclusions in Minn. Stat. § 524.2-208, paragraph (a), remove property from the decedent’s transfers to others: “(i) to the extent the decedent received adequate and full consideration in money or money’s worth for a transfer of the property, or (ii) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse.” Under paragraph (c)(1), values are reduced “in each category by mortgages, liens, and enforceable claims against the included property.”

How is the elective share paid, and who pays it?

The elective share is satisfied first from what the spouse already receives and from part of the spouse’s own property, and only the balance comes from the people who received the decedent’s property. Under Minn. Stat. § 524.2-209, paragraph (a), “In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others.”

Those first sources are what passes to the spouse by will, by intestacy, or outside probate, anything the spouse disclaimed, and the spouse’s own property up to a cap. Paragraph (a)(3) sets the cap: “amounts included in the augmented estate under section 524.2-207 up to the applicable percentage thereof.” The “applicable percentage” in that cap “is twice the elective-share percentage set forth in the schedule in section 524.2-202, paragraph (a), appropriate to the length of time the spouse and the decedent were married to each other.”

A simple example shows the order. Assume a marriage of more than 15 years, a decedent who left $1,600,000 to children from an earlier marriage, a surviving spouse who owns $400,000, and no homestead or debts. The augmented estate is $2,000,000, and the elective-share amount is 50% of it, or $1,000,000. The applicable percentage is twice 50%, so all $400,000 of the spouse’s own property is applied first. The remaining $600,000 comes from the children.

Under paragraph (b), that balance “is equitably apportioned among the recipients of the decedent’s probate estate and of that portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.” That first round leaves out property counted under § 524.2-205, paragraph (3), clauses (i) and (iii), the recent gifts and ended interests, and paragraph (c) reaches those transfers only if a balance is still unpaid. Under § 524.2-210, paragraph (a), “Only original recipients of the decedent’s nonprobate transfers to others, and the donees of the recipients of the decedent’s nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution.” A recipient of nonprobate property has a choice under Minn. Stat. § 524.2-210, paragraph (a): “A person liable to make contribution may choose to give up the proportional part that has been received of the decedent’s nonprobate transfers or to pay the value of the amount for which the person is liable.”

The court sets the numbers. Under Minn. Stat. § 524.2-211, paragraph (d), “After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 524.2-209 and 524.2-210.” Where property has already left the estate, “the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise.”

How do business interests count toward a spouse’s elective share?

A company interest counts toward the elective share through whichever category describes how it passed: owned at death, held where the owner alone could take it back, given away while the owner kept the income, given away shortly before death, or owned by the surviving spouse. The statutes treat an LLC unit or corporate share like any other property, so the planning question is how the interest left the owner’s hands.

1. Owned at death. An interest the owner still held at death and that passes by will or intestacy is part of the probate estate under § 524.2-204. For what happens to the company itself, see what happens when an LLC member dies without a plan.
2. Held in a trust the owner could revoke. An interest in a trust the owner alone could revoke can count under § 524.2-205, clause (1)(i), as described above.
3. Given away while keeping the income. A transfer of the interest during the marriage in which the owner “retained the right to the possession or enjoyment of, or to the income from, the property” counts under § 524.2-205, paragraph (2)(i), to the extent that right lasted until death.
4. Given to children shortly before death. A gift of units to a child in the period § 524.2-205, paragraph (3), describes counts to the extent gifts to that child exceeded $10,000 in either year.
5. Owned by the surviving spouse. If the surviving spouse owns a business, that interest counts in the augmented estate under § 524.2-207 and is applied first toward the share, up to the cap in § 524.2-209.

Two exclusions apply directly to an owner’s planning. A transfer is excluded “to the extent the decedent received adequate and full consideration in money or money’s worth,” so a sale to a co-owner at full value, such as one made under a buy-sell agreement, is excluded from the decedent’s transfers to others to that extent. A transfer is also excluded “if the transfer was consented to in writing by” the surviving spouse, which is one reason to obtain spousal consent to ownership transfers when units move to children during the owner’s life.

Sections 524.2-201 to 524.2-215 do not set a method for valuing a closely held company interest. Section 524.2-208, paragraph (c)(1), reduces each included value by “mortgages, liens, and enforceable claims against the included property.” Because the percentage applies to whatever value the court accepts, the company’s value can be the largest disputed number in an election. If the children receive the interest outside probate, § 524.2-210 lets them pay its proportional value instead of giving up units.

How does a surviving spouse claim the elective share?

A surviving spouse claims the elective share by filing a petition in the probate court and mailing or delivering it to the personal representative, if one has been appointed, within the period the statute sets. Under § 524.2-211, paragraph (a), “the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent’s death, or within six months after the probate of the decedent’s will, whichever limitation later expires.” I suggest checking the current text before relying on either period, because the legislature can change them. The same paragraph sets a second consequence of timing: “the decedent’s nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share, if the petition is filed more than nine months after the decedent’s death.” A late petition can therefore leave trust assets, joint accounts, and beneficiary-designated property out of the computation.

The steps in the statutes are these:

1. Give notice of the hearing. “The surviving spouse must give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.”
2. Ask for more time, if needed, before the first period runs. Under paragraph (b), “Within nine months after a decedent’s death, the surviving spouse may petition the court for an extension of time for making an election.” The same paragraph continues: “If, within nine months after the decedent’s death, the spouse gives notice of the petition to all persons interested in the decedent’s nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the time for election.”
3. Notify payors in writing. Under Minn. Stat. § 524.2-214, paragraph (a), “A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed.” Under paragraph (b), the notice “must be mailed to the payor’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action.”
4. Record a notice against Minnesota real estate. Section 524.2-201, clause (11), protects a buyer of the decedent’s real property from the spouse’s claim “unless the decedent’s surviving spouse has filed a notice in the office of the county recorder of the county in which the real property is located,” or with the registrar of titles for registered land. The notice must be one “containing the legal description of the property, a brief statement of the nature and extent of the interest claimed, and the venue, title, and file number of the proceeding for an elective share, if any has been commenced.”

I suggest sending the § 524.2-214 notice to each life insurer, plan administrator, and account custodian as soon as an election is likely, because a payor is liable to the spouse only for what it pays after receiving the notice. The spouse may also change course: under paragraph (c), “The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.” For the steps of an ordinary estate, see how Minnesota probate works.

The right belongs to the spouse alone. Under Minn. Stat. § 524.2-212, “The right of election of the surviving spouse may be exercised only during the surviving spouse’s lifetime.” For a spouse under a conservatorship, “the right of election may be exercised only by order of the court in which protective proceedings as to the protected person’s property are pending,” after findings the section lists. Different rules apply under Minn. Stat. § 524.2-215 “if a surviving spouse is receiving medical assistance under chapter 256B, when the person’s spouse dies.”

What does a surviving spouse receive in addition to the elective share?

A Minnesota surviving spouse also has homestead rights, exempt property, and a family allowance, and § 524.2-202(c) adds these to the elective share rather than charging them against it.

Under Minn. Stat. § 524.2-402, paragraph (a), “If there is a surviving spouse, the homestead, including a manufactured home which is the family residence, descends free from any testamentary or other disposition of it to which the spouse has not consented in writing or as provided by law.” Where the decedent left descendants, it passes “to the spouse for the term of the spouse’s natural life and the remainder in equal shares to the decedent’s descendants by representation.”

The homestead right must be claimed, with one exception. Paragraph (d) provides: “For purposes of this section, except as provided in section 524.2-301, the surviving spouse is deemed to consent to any testamentary or other disposition of the homestead to which the spouse has not previously consented in writing unless the spouse files in the manner provided in section 524.2-211, paragraph (f), a petition that asserts the homestead rights provided to the spouse by this section.” Section 524.2-211, paragraph (f), allows that petition “Whether or not an election has been made under paragraph (a),” within the periods that paragraph sets.

Two smaller rights round out the list:

1. Exempt property. Under Minn. Stat. § 524.2-403, paragraph (a), the spouse is entitled to “property not exceeding $15,000 in value in excess of any security interests therein, in household furniture, furnishings, appliances, and personal effects” and “one automobile, if any, without regard to value.”
2. Family allowance. Under Minn. Stat. § 524.2-404, the spouse and certain children “shall be allowed a reasonable family allowance in money out of the estate for their maintenance.” Under paragraph (b), “The amount of the family allowance may be determined by the personal representative in an amount not to exceed $2,300 per month.”

A will signed before the marriage raises a separate right. Under Minn. Stat. § 524.2-301, paragraph (a), “If a testator married after making a will and the spouse survives the testator, the surviving spouse shall receive a share of the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless” an exception applies. The exceptions include where “provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement,” where the will or other written evidence shows an intent not to provide for the spouse, and where the testator provided for the spouse outside the will in lieu of a gift. For what a will should address after a remarriage, see what a Minnesota will should cover.

How can a prenuptial or postnuptial agreement waive the elective share?

A written agreement can waive the elective share, but a waiver signed before the marriage must meet Minnesota’s prenuptial-agreement statute, and a waiver signed after the marriage must follow the probate code’s own rule. Under Minn. Stat. § 524.2-213, “The right of election of a surviving spouse and the rights of the surviving spouse to the homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partially, after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.” The same section adds: “Any waiver prior to marriage must be made pursuant to section 519.11.” The wording of the waiver matters too. Under § 524.2-213, “Unless it provides to the contrary,” a waiver of “all rights,” or equivalent language, “in the property or estate of a spouse is a waiver only of the right to the elective share.” I suggest naming each right being waived, the elective share, the homestead, exempt property, and the family allowance, because general language reaches only the first.

Prenuptial agreements. Under Minn. Stat. § 519.11, subd. 1, an antenuptial agreement may “determine the rights that each party has in the estate of the other as otherwise conferred upon them by chapter 524.” Under subdivision 1b, “An antenuptial agreement is procedurally fair if” each of these is true:

1. “there is full and fair disclosure of the current income and property of each party”
2. “each party has had a meaningful opportunity to consult with independent legal counsel of the party’s choosing”
3. “the agreement is in writing, executed in the presence of two witnesses, and acknowledged by the parties before a person authorized to administer an oath under the laws of this state”
4. “the agreement is entered into voluntarily and free of duress”
5. “the agreement is entered into and executed no less than seven days before the marriage”

Under subd. 1b(c), “An agreement entered into and executed at least seven days before the date of marriage is presumed enforceable and the burden of proof is on the party seeking to set aside the agreement.” The same paragraph adds: “An agreement that is entered into and executed less than seven days before the marriage is not presumed enforceable, and the proponent of the agreement has the burden of proof.” Subdivision 1c adds a substantive test: the court considers “whether all or part of the agreement is substantively unfair as to be unconscionable to a party either by the agreement’s terms or as the result of drastically changed circumstances originally not foreseen when the agreement was created, such that enforcement would no longer comport with the reasonable expectations of the parties at the time that the parties executed the agreement.” It also provides, “A deviation from statutory standards does not in itself make an agreement unconscionable.”

Postnuptial agreements. Under subd. 1d(c), “A postnuptial agreement is valid and enforceable only if at the time of its execution each spouse is represented by separate legal counsel.” Subdivision 1d(e) then provides: “Nothing in this section impairs the validity or enforceability of a contract, an agreement, or a waiver that is entered into after marriage and that is described in sections 524.2-201 to 524.2-215.” For a waiver signed during the marriage, I suggest separate counsel for each spouse and written disclosure, because subd. 1d(c) requires separate counsel for a postnuptial agreement and a written record documents the “fair disclosure” § 524.2-213 requires.

Older agreements. Under subd. 6, “This section applies to all antenuptial and postnuptial agreements executed on or after August 1, 2024.” Its second sentence reaches older agreements in one respect: “An antenuptial agreement entered into before August 1, 2024, shall not be invalidated based on the same sex of the parties to the agreement.” In In re Estate of Kinney, 733 N.W.2d 118 (Minn. 2007), a second wife petitioned for an elective share after a 34-year marriage. The personal representative sought to enforce her 1969 waiver of her “right of election against a will,” and the court applied common law because the agreement predated the statute. The court held “that although the opportunity to consult with independent counsel about an antenuptial agreement is a relevant factor in determining whether the agreement is enforceable under common law, it is not required for the antenuptial agreement to be enforceable.” The court reversed and remanded for further proceedings on whether the wife knew her rights without the agreement and whether she signed under duress or undue influence. Kinney also quoted the earlier version of § 519.11, which applied “to all antenuptial contracts and settlements executed on or after August 1, 1979.” In Kremer v. Kremer, 912 N.W.2d 617 (Minn. 2018), the court read that earlier subdivision 1 as a procedural fairness “safe harbor” for “provisions purporting to distribute nonmarital property,” and stated: “If the safe harbor does not apply, the common law does.” The court held “that the multifactor Kinney test is the common-law test applicable to antenuptial agreements, whether executed before or after August 1, 1979,” and stated that “antenuptial agreements must also be substantively fair under the common law.”

The earlier statute also set form rules. In Pollock-Halvarson v. McGuire, 576 N.W.2d 451 (Minn. App. 1998), the court quoted its subdivision 2 as requiring that these contracts “shall be in writing, executed in the presence of two witnesses and acknowledged by the parties, executing the same before any officer or person authorized to administer an oath under the laws of this state,” and that “An antenuptial contract must be entered into and executed prior to the day of solemnization of marriage.” A notary could count as one of the two witnesses: reviewing an agreement signed before an apparent notary and one other person, the court said subdivision 2 “does not distinguish the person taking the acknowledgment from the witnesses” and “does not clearly preclude the notary public from also serving as a witness.”

One exception reaches even a valid waiver. Where the surviving spouse receives medical assistance, § 524.2-215 lets the spouse exercise these rights “Notwithstanding any oral or written contract, agreement, or waiver made by the surviving spouse to waive in whole or in part the surviving spouse’s right of election,” but “The surviving spouse’s rights under this paragraph do not apply to the extent there is a valid antenuptial agreement between the surviving spouse and the decedent under which the surviving spouse has waived some or all of these rights.”

How do the first marriage’s children respond to an elective-share claim?

Children of an earlier marriage have no elective share of their own, because § 524.2-202 gives the right to “The surviving spouse,” but they can test a spouse’s claim against the limits in the statutes. The questions below track those limits:

1. Was the right waived? A prenuptial agreement that meets § 519.11, or a post-marriage waiver that meets § 524.2-213, can bar or reduce the claim. The waiver’s exact words decide which rights it covers.
2. Did the spouse consent in writing to a transfer? Property “transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse” is excluded under § 524.2-208(a).
3. Was the petition timely? Section 524.2-211(a) sets the filing deadlines quoted above, “whichever limitation later expires.” The nonprobate transfers drop out of the computation “if the petition is filed more than nine months after the decedent’s death,” unless the court extended the time under § 524.2-211(b) and the spouse elected “within the time allowed by the extension.” For a spouse receiving medical assistance, see § 524.2-215(b)(1).
4. Has the spouse’s own property been counted? Under § 524.2-209(a)(3), the spouse’s own property is applied first, up to twice the elective-share percentage.
5. Are the values right? Values are net of liens and enforceable claims, and under § 524.2-208(c)(2), “The commuted value of the surviving spouse’s interest in a life estate or in any trust shall be calculated as if worth one-half of the total value of the property subject to the life estate, or of the trust estate, unless higher or lower values for these interests are established by proof.”
6. Is the spouse still living? Under § 524.2-212, the right may be exercised “only during the surviving spouse’s lifetime,” with the medical-assistance exception in § 524.2-215.

Children may also hold a remainder in the homestead. Where descendants survive, § 524.2-402(a)(2) gives the spouse a life estate and “the remainder in equal shares to the decedent’s descendants by representation.” That descent applies against a disposition “to which the spouse has not consented in writing or as provided by law,” and, under § 524.2-402(d) as quoted above, the spouse “is deemed to consent” unless the spouse files the paragraph (f) petition.

A challenge to the will itself is a separate proceeding. Under Minn. Stat. § 524.3-407, “Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation.” For the timing of that challenge, see deadlines to contest a will or trust, and for one ground, see contesting a will for undue influence.

Next Steps on a Minnesota Elective Share

The first facts to gather are where the decedent was domiciled, the date of the marriage, the date of death, whether and when the will was probated, the nonprobate transfers (trusts, joint accounts, life insurance, retirement accounts, lifetime gifts), and any prenuptial or postnuptial agreement. Those facts decide whether § 524.2-202 applies, which percentage applies, which property counts, and whether a waiver bars the claim. The periods in § 524.2-211 are quoted above as they read on this article’s date, and I suggest reading the current text before relying on either one.

If you are a surviving spouse, an heir, a personal representative, or a trustee facing an elective-share question, email [email protected] with a brief description of the family, the documents, and the dates you know. I start with an intake and conflict check before you send confidential documents. I can then analyze the will, the trust, any marital agreement, and the asset list and tell you what the statute allows and what a court would need to decide. More on how I handle these cases is on my trust and estate litigation page.