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

- Should the surviving spouse’s elective share be calculated before federal estate
taxes are deducted?
- Should the tax payment clause in the will affect the amount of statutory elective
share?
- Is there relieve under the apportionment statute for the surviving spouse?
Courts’ Position – Elective share of surviving spouse should be calculated before federal
estate taxes are deducted and should not be charged with any part of tax if share was
fully deducted in computing tax. See Matter of Shapiro, 362 N.W. 2d 390 (Minn. App. 1985)
10. ELECTIVE SHARE AND SPOUSAL CONSENTS AND WAIVERS.
If you use or routinely use consent clauses in your will for married couples, you should
review Minn. Stat. §524.2-213 carefully to be sure you cover all the property intended by such
waiver. A waiver of “all rights” or equivalent language only waives the right to elective share,
not the right to homestead, exempt property, or family allowance.
A properly drafted antenuptial/prenuptial agreement (complying with statutory
requirements) can be used to waive statutory rights to claim elective share. 16
Note, however, that prenuptial agreements executed by a fiancé can “not effectively
waive her rights within ERISA. 17
So when dealing with ERISA plans, special care must be taken
to secure valid waivers, after the marriage, to the designation of a specified non-spousal
beneficiary.
In summary, four reasons for “Spousal Elective Share”
1. The spouse has contributed to the family assets and therefore should be
entitled to a share of the assets;
2. Provides the surviving spouse with a share to continue to live and raise
children of the relationship;
3. The “forced share” is considered an extension of the decedent’s duty to
support h/his spouse during h/his lifetime;
16 Affiliated Bank Group, Ltd. v. Zehringer, 527 N.W.2d 585 (Minn. App. 1995). Note that this case
appears to suggest that if a spouse agrees to accept a specific bequest in an antenuptial agreement in
lien exercising her statutory rights, if there are insufficient assets in the estate to satisfy the bequest, the
survivor has assumed the risk of such insufficiency of assets. Id. At 588.
17 Zinn v. Donaldson Co., Inc., 799 F. Supp. 69 (D. Minn. 1992).
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