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

. 1969 Version
In the 1969 statutory scheme, any conveyance of assets by a person who retains
a power of appointment by Will, or a power of revocation or consumption over the
principal thereof, was treated as a testamentary disposition so far as the
surviving spouse was concerned such that the surviving spouse was allowed to
elect against any such conveyance subject to the vested rights of any income
beneficiary whose interest became vested prior to the death of the conveyor.
The surviving spouse was entitled to one-third of the conveyance if the conveyor
is survived by more than one child, or by one or more children and the issue of a
deceased child or children, or by the issue of more than one deceased child, and
in all other circumstances one half thereof. 6
In addition, the surviving spouse
was entitled to personal property selection and maintenance if there were
sufficient probate assets to pay the same. 7
The 1969 law had a lot of loopholes which still resulted in the ability of a
decedent to avoid the spouse receiving assets. i.e. life insurance proceeds were
treated as non-testamentary and therefore not subject to the election. 8
It was
also unclear whether the elective share could include property that the decedent
had transferred into joint tenancy and Minnesota law did not specifically state that
joint tenancy property was subject to the election. Minnesota Courts held that
joint tenancy property was not subject to the election and therefore passed to the
surviving joint tenant—a possible loophole.. 9
6 Minn. Stat. § 525.213 [1969 c 1003 s 2]
7 Minn. Stat. § 525.215 [1969 c 1003 s 2]
8 Minn. Stat. § 525.213 [1969 c 1003 s 1]
9 See Tanick and Johnson Supra at 247n 30 citing Pappas v. Pappas, 177 N.W. 2nd 401, 403 (1970)
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