Probate & Trust Law Section Conference Manual ... - Minnesota CLE

1. INTRODUCTION
Minnesota, as in many other states, has adopted various versions of a law designed
primarily to protect surviving spouses from being disinherited by the deceased spouse. In
Minnesota, these protective statutes have evolved over the years starting with provisions in
place prior to 1985 to provisions enacted after 1985. The common thread in all the iterations of
the spousal protective statutes is the protection of the surviving spouse by guaranteeing that the
surviving spouse inherits some portion of the deceased spouse’s assets. Minnesota’s various
versions of these statutes either expand the classes of assets that the surviving spouse can
have access to or prevents the overreaching of the surviving spouse vis-à-vis other
beneficiaries of the deceased spouse.
Historically, surviving spouses’ interests in each other’s property rested largely in real
property rights protected under the common law concepts of dower and curtsey which
preserved for widows an interest in any realty seized or possessed by their husbands during
their marriage. 1
This preservation of rights in realty however provided no comfort for surviving
spouses whose deceased spouses elected to hold or convert real property interests to personal
property interests during their lifetime. 2
Statutory schemes designed to further protect the surviving spouse from complete
disinheritance grew out of the recognition that the primary source of wealth in society had
shifted from real property to personal property. These new schemes or forced shares included
both real and personal property.
1 Andrew E. Tanick and Pamela L. Johnson; The Probate Reform: The New Minnesota Elective Share
Statutes, 70 Minn. Law Review, 241, 247 (1985)
2 See Peterson and Wolfson, Election Against the Wills; The Elective Share of Surviving Spouse, The
Bench & Bar of Minnesota, October 1986/15 citing, In re Estate of Washburn, 20 N.W. 324, 325-26
(1984)
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