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Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

  

                         Laws of Minnesota 1985 

                        CHAPTER 250-S.F.No. 459 
           An act relating to probate; adopting provisions of the 
          uniform probate code and clarifying laws relating to 
          intestate succession, spouse's elective share, and 
          omitted spouses and children; clarifying provisions 
          relating to the award of costs in guardianship and 
          conservatorship proceedings; providing for the payment 
          of reasonable fees and expenses for certain guardians 
          and conservators; amending Minnesota Statutes 1984, 
          sections 257.34, subdivision 1; 525.13; 525.145; and 
          525.703; proposing coding for new law in Minnesota 
          Statutes, chapter 524; repealing Minnesota Statutes 
          1984, sections 525.16; 525.17; 525.171; 525.172; 
          525.173; 525.20; 525.201; 525.202; 525.212 to 525.216. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 

                                 PART 1 

                          INTESTATE SUCCESSION 
    Section 1.  [524.2-101] [INTESTATE ESTATE.] 
    Except as provided in sections 525.14 and 525.145, and 
subject to the allowances provided in section 525.15, and the 
payment of the expenses of administration, funeral expenses, 
expenses of last illness, taxes, and debts, any part of the 
estate of a decedent not effectively disposed of by the 
decedent's will passes to the decedent's heirs as prescribed in 
sections 2 to 13.  
    Sec. 2.  [524.2-102] [SHARE OF THE SPOUSE.] 
    The intestate share of the surviving spouse is:  
    (1) if there is no surviving issue of the decedent, the 
entire intestate estate;  
    (2) if there are surviving issue all of whom are issue of 
the surviving spouse also, the first $70,000, plus one-half of 
the balance of the intestate estate;  
    (3) if there are surviving issue one or more of whom are 
not issue of the surviving spouse, one-half of the intestate 
estate.  
    Sec. 3.  [524.2-103] [SHARE OF HEIRS OTHER THAN SURVIVING 
SPOUSE.] 
    The part of the intestate estate not passing to the 
surviving spouse under section 2, or the entire intestate estate 
if there is no surviving spouse, passes as follows:  
    (1) to the issue of the decedent; any who are children of 
the decedent take equally and others by representation;  
    (2) if there is no surviving issue, to the parent or 
parents equally;  
    (3) if there is no surviving issue or parent, to the issue 
of the parents or either of them by representation;  
    (4) if there is no surviving issue, parent, or issue of a 
parent, to the next of kin in equal degree, except that when 
there are two or more collateral kindred in equal degree 
claiming through different ancestors, those who claim through 
the nearest ancestor shall take to the exclusion of those 
claiming through an ancestor more remote.  
    Sec. 4.  [524.2-104] [REQUIREMENT THAT HEIR SURVIVE 
DECEDENT FOR 120 HOURS.] 
     A person who fails to survive the decedent by 120 hours is 
deemed to have predeceased the decedent for purposes of descent 
of the homestead, exempt property and intestate succession, and 
the decedent's heirs are determined accordingly.  If the time of 
death of the decedent or of the person who would otherwise be an 
heir, or the times of death of both, cannot be determined, and 
it cannot be established that the person who would otherwise be 
an heir has survived the decedent by 120 hours, it is deemed 
that the person failed to survive for the required period.  This 
section is not to be applied where its application would result 
in a taking of intestate estate by the state under section 5.  
    Sec. 5.  [524.2-105] [NO TAKER.] 
    If there is no taker under the provisions of sections 2 to 
13, the intestate estate passes to the state.  
    Sec. 6.  [524.2-106] [REPRESENTATION.] 
    If representation is called for by sections 2 to 13: 
    (1) In the case of issue of the decedent, the estate is 
divided into as many shares as there are surviving children of 
the decedent and deceased children who left issue who survive 
the decedent, each surviving child receiving one share and the 
share of each deceased child being divided among his or her 
issue in the same manner.  
    (2) In the case of issue of the parents of the decedent 
(other than issue of the decedent) the estate is divided into as 
many shares as there are surviving heirs in the nearest degree 
of kinship and deceased persons in the same degree who left 
issue who survived the decedent, each surviving heir in the 
nearest degree receiving one share and the share of each 
deceased person in the same degree being divided among his 
children, and the descendants of deceased children of him, in 
the same manner as specified in clause (1). 
    Sec. 7.  [524.2-107] [DEGREE OF KINDRED AND KINDRED OF HALF 
BLOOD.] 
    The degree of kindred shall be computed according to the 
rules of the civil law.  Relatives of the half blood inherit the 
same share they would inherit if they were of the whole blood.  
    Sec. 8.  [524.2-108] [AFTERBORN HEIRS.] 
    Relatives of the decedent conceived before his death but 
born thereafter inherit as if they had been born in the lifetime 
of the decedent.  
    Sec. 9.  [524.2-109] [MEANING OF CHILD AND RELATED TERMS.] 
    If, for purposes of intestate succession, a relationship of 
parent and child must be established to determine succession by, 
through, or from a person:  
    (1) An adopted person is the child of an adopting parent 
and not of the natural parents except that adoption of a child 
by the spouse of a natural parent has no effect on the 
relationship between the child and that natural parent.  If a 
parent dies and a child is subsequently adopted by a stepparent 
who is the spouse of a surviving parent, any rights of 
inheritance of the child or the child's issue from or through 
the deceased parent of the child which exist at the time of the 
death of that parent shall not be affected by the adoption.  
    (2) In cases not covered by clause (1), a person born out 
of wedlock is a child of the mother.  That person is also a 
child of the father, if:  
    (i) the natural parents participated in a marriage ceremony 
before or after the birth of the child, even though the 
attempted marriage is void; or 
    (ii) the paternity is established by an adjudication or by 
acknowledgment, consent, or agreement pursuant to sections 
257.51 to 257.74 before the death of the father or is 
established thereafter by clear and convincing proof, except 
that the paternity established under this clause is ineffective 
to qualify the father or his kindred to inherit from or through 
the child unless the father has openly treated the child as his, 
and has not refused to support the child.  
    Sec. 10.  [524.2-111] [DEBTS TO DECEDENT.] 
     A debt owed to the decedent is not charged against the 
intestate share of any person except the debtor.  If the debtor 
fails to survive the decedent, the debt is not taken into 
account in computing the intestate share of the debtor's issue.  
    Sec. 11.  [524.2-112] [ALIENAGE.] 
     No person is disqualified to take as an heir because he or 
a person through whom he claims is or has been an alien.  
    Sec. 12.  [524.2-113] [PERSONS RELATED TO DECEDENT THROUGH 
TWO LINES.] 
    A person who is related to the decedent through two lines 
of relationship is entitled to only a single share based on the 
relationship which would entitle such person to the larger share.
    Sec. 13.  [524.2-114] [INSTRUMENTS REFERENCING INTESTACY 
LAWS.] 
    If a maker has executed a will or other instrument on or 
before December 31, 1986, which directs disposition of all or 
part of the estate pursuant to the intestacy laws of the state 
of Minnesota, the laws to be applied shall be in accordance with 
the laws of intestate succession in effect on or before December 
31, 1986, unless the will or instrument directs otherwise.  

                                 PART 2 

                   ELECTIVE SHARE OF SURVIVING SPOUSE 
    Sec. 14.  [524.2-201] [RIGHT TO ELECTIVE SHARE.] 
    (a) If a married person domiciled in this state dies, the 
surviving spouse has a right of election to take an elective 
share of one-third of the augmented estate under the limitations 
and conditions hereinafter stated.  
    (b) If a married person not domiciled in this state dies, 
the right, if any, of the surviving spouse to take an elective 
share in property in this state is governed by the law of the 
decedent's domicile at death.  
    Sec. 15.  [524.2-202] [AUGMENTED ESTATE.] 
    The augmented estate means the estate reduced by funeral 
and administration expenses, the homestead, family allowances 
and exemptions, liens, mortgages, and enforceable claims, to 
which is added the sum of the following amounts:  
     (1) The value of property transferred by the decedent at 
any time during the marriage, to or for the benefit of any 
person other than the surviving spouse, to the extent that the 
decedent did not receive adequate and full consideration in 
money or money's worth for the transfer, if the transfer is of 
any of the following types:  
    (i) any transfer under which the decedent retained at the 
time of death the possession or enjoyment of, or right to income 
from, the property;  
    (ii) any transfer to the extent that the decedent retained 
at the time of death a power, either alone or in conjunction 
with any other person, to revoke or to consume, invade or 
dispose of the principal for his or her own benefit;  
     (iii) any transfer whereby property is held at the time of 
decedent's death by decedent and another with right of 
survivorship;  
    (iv) any transfer made within one year of death of the 
decedent to the extent that the aggregate transfers to any one 
donee in the year exceeds $30,000.  
    Any transfer is excluded if made with the written consent 
or joinder of the surviving spouse.  Property is valued as of 
the decedent's death except that property given irrevocably to a 
donee during lifetime of the decedent is valued as of the date 
the donee came into possession or enjoyment if that occurs first.
Nothing in this section shall cause any life insurance, accident 
insurance, joint annuity, or pension or profit sharing plan 
payable to a person other than the surviving spouse to be 
included in the augmented estate.  
    (2) The value of property owned by the surviving spouse at 
the decedent's death, plus the value of property transferred by 
the spouse at any time during marriage to any person other than 
the decedent which would have been includable in the spouse's 
augmented estate if the surviving spouse had predeceased the 
decedent, to the extent the owned or transferred property is 
derived from the decedent by any means other than testate or 
intestate succession or as an obligation of support without a 
full consideration in money or money's worth.  For purposes of 
this clause:  
    (i) Property derived from the decedent includes, but is not 
limited to, any beneficial interest of the surviving spouse in a 
trust created by the decedent during the decedent's lifetime, 
any property appointed to the spouse by the decedent's exercise 
of a general or special power of appointment also exercisable in 
favor of others than the spouse, any property held at the time 
of decedent's death by decedent and the surviving spouse with 
right of survivorship, any property held by decedent and 
transferred by contract to the surviving spouse by reason of the 
decedent's death, and the value of the share of the surviving 
spouse resulting from rights in community property in this or 
any other state formerly owned with the decedent.  The augmented 
estate does not include the proceeds of life insurance payable 
upon the death of the decedent, in lump sum or in the form of an 
annuity, accident insurance, joint annuity or pension or profit 
sharing plan, nor does it include premiums paid therefor by the 
decedent or any other person.  
    (ii) Property owned by the spouse at the decedent's death 
is valued as of the date of death.  Property transferred by the 
spouse is valued at the time the transfer became irrevocable, or 
at the decedent's death, whichever occurred first.  Income 
earned by included property prior to the decedent's death is not 
treated as property derived from the decedent.  
    (iii) Property owned by the surviving spouse as of the 
decedent's death of the kind described in clause (2)(i) of this 
section is presumed to have been derived from the decedent 
except to the extent that the surviving spouse establishes that 
it was derived from another source.  All other property owned by 
the surviving spouse as of the decedent's death, or previously 
transferred by the surviving spouse, is presumed not to have 
been derived from the decedent except to the extent that an 
interested party establishes that it was derived from the 
decedent.  
    Sec. 16.  [524.2-203] [RIGHT OF ELECTION PERSONAL TO 
SURVIVING SPOUSE.] 
    The right of election of the surviving spouse may be 
exercised only during his lifetime by him.  In the case of a 
protected person, the right of election may be exercised only by 
order of the court in which protective proceedings as to his 
property are pending, after finding (1) that exercise is 
necessary to provide adequate support for the protected person 
during his probable life expectancy and (2) that the election 
will be consistent with the best interests of the natural bounty 
of the protected person's affection.  
    Sec. 17.  [524.2-204] [WAIVER OF RIGHT TO ELECT AND OF 
OTHER RIGHTS.] 
    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.  
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 elective share.  Any waiver prior to 
marriage must be made pursuant to section 519.11.  
    Sec. 18.  [524.2-205] [PROCEEDING FOR ELECTIVE SHARE; TIME 
LIMIT.] 
    (a) The surviving spouse may elect to take an elective 
share in the augmented net estate 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 death, or within six months after the probate of the 
decedent's will, whichever limitation last expires.  However, 
nonprobate transfers, described in section 15, clause (1) and 
clause (3), shall not be included within the augmented estate 
for the purpose of computing the elective share, if the petition 
is filed later than nine months after death.  The court may 
extend the time for election as it sees fit for cause shown by 
the surviving spouse before the time for election has expired.  
    (b) The surviving spouse shall 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 net 
estate whose interests will be affected by the taking of the 
elective share.  
     (c) The surviving spouse may withdraw his demand for an 
elective share at any time before entry of an order by the court 
determining the elective share.  
     (d) After notice and hearing, the court shall determine the 
amount of the elective share and shall order its payment from 
the assets of the augmented net estate or by contribution as 
appears appropriate under section 20.  If it appears that a fund 
or property included in the augmented net estate has not come 
into the possession of the personal representative, or has been 
distributed by the personal representative, 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.  The proceeding may be 
maintained against fewer than all persons against whom relief 
could be sought, but no person is subject to contribution in any 
greater amount than he would have been if relief had been 
secured against all persons subject to contribution.  
    (e) The order or judgment of the court may be enforced as 
necessary in suit for contribution or payment in other courts of 
this state or other jurisdictions.  
    Sec. 19.  [524.2-206] [EFFECT OF ELECTION ON BENEFITS BY 
WILL OR STATUTE.] 
    A surviving spouse is entitled to the allowances provided 
in section 525.15 whether or not he or she elects to take an 
elective share.  
    Sec. 20.  [524.2-207] [CHARGING SPOUSE WITH GIFTS RECEIVED; 
LIABILITY OF OTHERS FOR BALANCE OF ELECTIVE SHARE.] 
    (a) In the proceeding for an elective share, values 
included in the augmented estate which pass or have passed to 
the surviving spouse, or which would have passed to the 
surviving spouse but were renounced, are applied first to 
satisfy the elective share and to reduce any contributions due 
from other recipients of transfers included in the augmented 
estate.  For purposes of this paragraph, the electing spouse's 
beneficial interest in any life estate or in any trust shall be 
computed 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.  
     (b) Remaining property of the augmented estate is so 
applied that liability for the balance of the elective share of 
the surviving spouse is equitably apportioned among the 
recipients of the augmented estate in proportion to the value of 
their interests therein.  
     (c) Only original transferees from, or appointees of, the 
decedent and their donees, to the extent the donees have the 
property or its proceeds, are subject to the contribution to 
make up the elective share of the surviving spouse.  A person 
liable to contribution may choose to give up the property 
transferred to him or to pay its value as of the time it is 
considered in computing the augmented estate.  

                                 PART 3 

              SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS 
    Sec. 21.  [524.2-301] [OMITTED SPOUSE.] 
    (a) If a testator fails to provide by will for his 
surviving spouse who married the testator after the execution of 
the will, the omitted spouse shall receive the same share of the 
estate he would have received if the decedent left no will 
unless it appears from the will that the omission was 
intentional or the testator provided for the spouse by transfer 
outside the will and the intent that the transfer be in lieu of 
a testamentary provision is shown by statements of the testator 
or from the amount of the transfer or other evidence.  
     (b) In satisfying a share provided by this section, the 
devises made by the will abate as provided in section 524.3-902. 
    Sec. 22.  [524.2-302] [PRETERMITTED CHILDREN.] 
    (a) If a testator fails to provide in his will for any of 
his children born or adopted after the execution of his will, 
the omitted child receives a share in the estate equal in value 
to that which he would have received if the testator had died 
intestate unless:  
     (1) it appears from the will that the omission was 
intentional;  
    (2) when the will was executed the testator had one or more 
children and devised substantially all his estate to the other 
parent of the omitted child; or 
    (3) the testator provided for the child by transfer outside 
the will and the intent that the transfer be in lieu of a 
testamentary provision is shown by statements of the testator or 
from the amount of the transfer or other evidence.  
    (b) If at the time of execution of the will the testator 
fails to provide in his will for a living child solely because 
he believes the child to be dead, the child receives a share in 
the estate equal in value to that which he would have received 
if the testator had died intestate.  
    (c) In satisfying a share provided by this section, the 
devises made by the will abate as provided in section 524.3-902. 

                                 PART 4
MISCELLANEOUS PROVISIONS 
    Sec. 23.  Minnesota Statutes 1984, section 257.34, 
subdivision 1, is amended to read: 
    Subdivision 1.  [ACKNOWLEDGMENT BY PARENTS.] The mother and 
father of a child born to a mother who was not married to the 
child's father when the child was conceived nor when the child 
was born may, in a writing signed by both of them before a 
notary public, declare and acknowledge under oath that they are 
the biological parents of the child.  The declaration may 
provide that any such child born to the mother at any time 
before or up to ten months after the date of execution of the 
declaration is the biological child of the signatories.  
Execution of the declaration shall: 
    (a) Have the same consequences as an acknowledgement by the 
signatories of parentage of the child for the purposes of 
sections 62A.041 and 62C.14, subdivision 5a; 
    (b) Be conclusive evidence that the signatories are parents 
of the child for the purposes of sections 176.111 and 197.09 to 
197.11; 
    (c) Have the same consequences as an acknowledgement by the 
father of paternity of the child for the purposes of sections 
257.57 and 257.66; 
    (d) When timely filed with the division of vital statistics 
of the Minnesota department of health as provided in section 
259.261, qualify as an affidavit stating the intention of the 
signatories to retain parental rights as provided in section 
259.261 if it contains the information required by section 
259.261 or rules promulgated thereunder; 
    (e) Have the same consequences as a writing declaring 
paternity of the child for the purposes of section 525.172 9; 
and 
    (f) Be conclusive evidence that the signatories are parents 
of the child for the purposes of chapter 573. 
    Sec. 24.  Minnesota Statutes 1984, section 525.13, is 
amended to read: 
    525.13 [ESTATE.] 
    As used in sections 525.13 to 525.173 525.161, the word 
"estate" includes every right and interest of a decedent in 
property, real or personal, except such as are terminated or 
otherwise extinguished by his death. 
    Sec. 25.  Minnesota Statutes 1984, section 525.145, is 
amended to read: 
    525.145 [DESCENT OF HOMESTEAD.] 
    (1) Where there is a surviving spouse the homestead, 
including a manufactured home which is the family residence, 
shall descend free from any testamentary or other disposition 
thereof to which the spouse has not consented in writing or by 
election to take under the will as provided by law, as follows: 
    (a) If there be no surviving child or issue of any deceased 
child, to the spouse; 
    (b) If there be children or issue of deceased children 
surviving, then to the spouse for the term of the spouse's 
natural life and the remainder in equal shares to the children 
and the issue of deceased children by right of representation. 
    (2) Where there is no surviving spouse and the homestead 
has not been disposed of by will it shall descend as other real 
estate. 
    (3) Where the homestead passes by descent or will to the 
spouse or children or issue of deceased children, it shall be 
exempt from all debts which were not valid charges thereon at 
the time of decedent's death except that the homestead shall be 
subject to a claim filed pursuant to section 246.53 for state 
hospital care or 256B.15 for medical assistance benefits.  If 
the homestead passes to a person other than a spouse or child or 
issue of a deceased child, it shall be subject to the payment of 
the items mentioned in section 525.16 1.  No lien or other 
charge against any homestead which is so exempted shall be 
enforced in the probate court, but the claimant may enforce the 
lien or charge by an appropriate action in the district court. 
    Sec. 26.  Minnesota Statutes 1984, section 525.703, is 
amended to read: 
    525.703 [COSTS.] 
    Subdivision 1.  [IN FORMA PAUPERIS.] The court may 
authorize a proceeding under sections 525.54 to 525.702 to 
proceed in forma pauperis, as provided in chapter 563.  
    Subd. 2.  [LAWYER OR HEALTH PROFESSIONAL.] In proceedings 
under sections 525.54 to 525.702 a lawyer or health professional 
rendering necessary services with regard to the appointment of a 
guardian or conservator, the administration of the ward's or 
conservatee's estate or personal affairs or the restoration of 
his capacity, shall be entitled to reasonable compensation from 
the estate of the ward or conservatee or from the county having 
jurisdiction over the proceedings if the ward or conservatee is 
indigent.  When the court determines that other necessary 
services have been provided for the benefit of the ward or 
conservatee by a lawyer or health professional, the court may 
order reasonable fees to be paid from the estate of the ward or 
conservatee or from the county having jurisdiction over the 
proceedings if the ward or conservatee is indigent.  If, 
however, the court determines that a petitioner, guardian or 
conservator has not acted in good faith, the court shall order 
some or all of the fees or costs incurred in the proceedings to 
be borne by those the petitioner, guardian, or conservator not 
acting in good faith.  
    Subd. 3.  [GUARDIAN OR CONSERVATOR.] (a) When the court 
determines that a guardian or conservator of the person or the 
estate has rendered necessary services or has incurred necessary 
expenses for the benefit of the ward or conservatee, the court 
may order reimbursement or reasonable compensation to be paid 
from the estate of the ward or conservatee or from the county 
having jurisdiction over the guardianship or conservatorship if 
the ward or conservatee is indigent.  The court may not deny an 
award of fees solely because the ward or conservatee is a 
recipient of medical assistance.  
     (b) The court shall order reimbursement or reasonable 
compensation if the guardian or conservator requests payment and 
the guardian or conservator was nominated by the court or by the 
county adult protection unit because no suitable relative or 
other person was available to provide guardianship or 
conservatorship services necessary to prevent abuse or neglect 
of a vulnerable adult, as defined in section 626.557.  
    (c) When a county employee serves as a guardian or 
conservator as part of his or her employment duties, the court 
shall order reasonable compensation if the guardian or 
conservator performs necessary services that are not compensated 
by the county.  The court may order reimbursement to the county 
from the ward's or conservatee's estate for reasonable 
compensation paid by the county for services rendered by a 
guardian or conservator who is a county employee but only if the 
county shows that after a diligent effort it was unable to 
arrange for an independent guardian or conservator. 
    Sec. 27.  [REPEALER.] 
    Minnesota Statutes 1984, sections 525.16; 525.17; 525.171; 
525.172; 525.173; 525.20; 525.201; 525.202; 525.212; 525.213; 
525.214; 525.215; and 525.216 are repealed. 
    Sec. 28.  [EFFECTIVE DATE.] 
    Sections 1 to 25 and 27 are effective for estates of 
decedents dying after December 31, 1986. 
    Approved May 29, 1985