Office of the Revisor of Statutes
Minnesota Session Laws - 1994, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 472-H.F.No. 1659
An act relating to probate; updating article 2 on
intestacy, wills, and donative transfers; correcting a
reference; recodifying the Minnesota multiparty
accounts act; amending Minnesota Statutes 1992,
sections 524.1-201; 524.2-101; 524.2-102; 524.2-103;
524.2-104; 524.2-105; 524.2-106; 524.2-108; 524.2-109;
524.2-110; 524.2-111; 524.2-113; 524.2-114; 524.2-301;
524.2-302; 524.2-502; 524.2-504; 524.2-505; 524.2-507;
524.2-508; 524.2-509; 524.2-512; 524.2-602; 524.2-603;
524.2-604; 524.2-605; 524.2-606; 524.2-607; 524.2-608;
524.2-609; and 524.2-701; proposing coding for new law
in Minnesota Statutes, chapter 524; repealing
Minnesota Statutes 1992, sections 524.2-112;
524.2-201; 524.2-202; 524.2-203; 524.2-204; 524.2-205;
524.2-206; 524.2-207; 524.2-503; 524.2-610; 524.2-612;
524.3-905; 525.15; 525.151; 525.22; 525.221; and
525.223.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1992, section 524.1-201, is
amended to read:
524.1-201 [GENERAL DEFINITIONS.]
Subject to additional definitions contained in the
subsequent articles which are applicable to specific articles or
parts, and unless the context otherwise requires, in chapters
524 and 525:
(1) (2) "Application" means a written request to the
registrar for an order of informal probate or appointment under
article III, part 3.
(2) (3) "Beneficiary," as it relates to trust
beneficiaries, includes a person who has any present or future
interest, vested or contingent, and also includes the owner of
an interest by assignment or other transfer and as it relates to
a charitable trust, includes any person entitled to enforce the
trust.
(3) (5) "Child" includes any individual entitled to take as
a child under law by intestate succession from the parent whose
relationship is involved and excludes any person who is only a
stepchild, a foster child, a grandchild or any more remote
descendant.
(4) (6) "Claims" includes liabilities of the decedent
whether arising in contract or otherwise and liabilities of the
estate which arise after the death of the decedent including
funeral expenses and expenses of administration. The term does
not include taxes, demands or disputes regarding title of a
decedent to specific assets alleged to be included in the
estate, tort claims, foreclosure of mechanic's liens, or to
actions pursuant to section 573.02.
(5) (7) "Court" means the court or branch having
jurisdiction in matters relating to the affairs of decedents.
This court in this state is known as the probate court or county
court.
(6) (8) "Conservator" means a person who is appointed by a
court to manage the estate of a protected person.
(9) "Descendant" of an individual means all of the
individual's descendants of all generations, with the
relationship of parent and child at each generation being
determined by the definition of child and parent contained in
this section.
(7) (10) "Devise," when used as a noun, means a
testamentary disposition of real or personal property and when
used as a verb, means to dispose of real or personal property by
will.
(8) (11) "Devisee" means any person designated in a will to
receive a devise. In the case of a devise to an existing trust
or trustee, or to a trustee on trust described by will, the
trust or trustee is the devisee and the beneficiaries are not
devisees.
(9) (12) "Disability" means cause for a protective order as
described by section 525.54.
(10) (13) "Distributee" means any person who has received
property of a decedent from the decedent's personal
representative other than as a creditor or purchaser. A
testamentary trustee is a distributee only to the extent of
distributed assets or increment thereto remaining in the
trustee's hands. A beneficiary of a testamentary trust to whom
the trustee has distributed property received from a personal
representative is a distributee of the personal representative.
For purposes of this provision, "testamentary trustee" includes
a trustee to whom assets are transferred by will, to the extent
of the devised assets.
(11) (14) "Estate" includes all of the property of the
decedent, trust, or other person whose affairs are subject to
this chapter as originally constituted and as it exists from
time to time during administration.
(12) (16) "Fiduciary" includes personal representative,
guardian, conservator and trustee.
(13) (17) "Foreign personal representative" means a
personal representative of another jurisdiction.
(14) (18) "Formal proceedings" means those conducted before
a judge with notice to interested persons.
(15) (20) "Guardian" means a person who has qualified as a
guardian of a minor or incapacitated person pursuant to
testamentary or court appointment, but excludes one who is
merely a guardian ad litem.
(16) (21) "Heirs" means those persons, including the
surviving spouse, who are entitled under the statutes of
intestate succession to the property of a decedent.
(17) (22) "Incapacitated person" is as described in section
525.54, other than a minor.
(18) (23) "Informal proceedings" means those conducted by
the judge, the registrar, or the person or persons designated by
the judge for probate of a will or appointment of a personal
representative in accordance with sections 524.3-301 to
524.3-311.
(19) (24) "Interested person" includes heirs, devisees,
children, spouses, creditors, beneficiaries and any others
having a property right in or claim against the estate of a
decedent, ward or protected person which may be affected by the
proceeding. It also includes persons having priority for
appointment as personal representative, and other fiduciaries
representing interested persons. The meaning as it relates to
particular persons may vary from time to time and must be
determined according to the particular purposes of, and matter
involved in, any proceeding.
(20) (27) "Lease" includes an oil, gas, or other mineral
lease.
(21) (28) "Letters" includes letters testamentary, letters
of guardianship, letters of administration, and letters of
conservatorship.
(22) (30) "Mortgage" means any conveyance, agreement or
arrangement in which property is used as security.
(23) (31) "Nonresident decedent" means a decedent who was
domiciled in another jurisdiction at the time of death.
(24) (32) "Organization" includes a corporation, government
or governmental subdivision or agency, business trust, estate,
trust, partnership or association, two or more persons having a
joint or common interest, or any other legal entity.
(25) (35) "Person" means an individual, a corporation, an
organization, or other legal entity.
(26) (36) "Personal representative" includes executor,
administrator, successor personal representative, special
administrator, and persons who perform substantially the same
function under the law governing their status. "General personal
representative" excludes special administrator.
(27) (37) "Petition" means a written request to the court
for an order after notice.
(28) (38) "Proceeding" includes action at law and suit in
equity.
(29) (39) "Property" includes both real and personal
property or any interest therein and means anything that may be
the subject of ownership.
(30) (40) "Protected person" is as described in section
525.54, subdivision 2 1.
(31) (42) "Registrar" refers to the judge of the court or
the person designated by the court to perform the functions of
registrar as provided in section 524.1-307.
(32) (43) "Security" includes any note, stock, treasury
stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in an oil, gas or mining title or
lease or in payments out of production under such a title or
lease, collateral trust certificate, transferable share, voting
trust certificate or, in general, any interest or instrument
commonly known as a security, or any certificate of interest or
participation, any temporary or interim certificate, receipt or
certificate of deposit for, or any warrant or right to subscribe
to or purchase, any of the foregoing.
(33) (44) "Settlement," in reference to a decedent's
estate, includes the full process of administration,
distribution and closing.
(34) (45) "Special administrator" means a personal
representative as described by sections 524.3-614 to 524.3-618.
(35) (46) "State" includes any state of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, and
any territory or possession subject to the legislative authority
of the United States.
(36) (47) "Successor personal representative" means a
personal representative, other than a special administrator, who
is appointed to succeed a previously appointed personal
representative.
(37) (48) "Successors" means those persons, other than
creditors, who are entitled to property of a decedent under the
decedent's will, this chapter or chapter 525. "Successors" also
means a funeral director or county government that provides the
funeral and burial of the decedent.
(38) (49) "Supervised administration" refers to the
proceedings described in sections 524.3-501 to 524.3-505.
(39) (51) "Testacy proceeding" means a proceeding to
establish a will or determine intestacy.
(40) (53) "Trust" includes any express trust, private or
charitable, with additions thereto, wherever and however
created. It also includes a trust created or determined by
judgment or decree under which the trust is to be administered
in the manner of an express trust. "Trust" excludes other
constructive trusts, and it excludes resulting trusts,
conservatorships, personal representatives, trust accounts as
defined in chapter 528, custodial arrangements pursuant to
sections 149.11 to 149.14, 318.01 to 318.06, 527.01 to 527.44,
business trusts providing for certificates to be issued to
beneficiaries, common trust funds, voting trusts, security
arrangements, liquidation trusts, and trusts for the primary
purpose of paying debts, dividends, interest, salaries, wages,
profits, pensions, or employee benefits of any kind, and any
arrangement under which a person is nominee or escrowee for
another.
(41) (54) "Trustee" includes an original, additional, or
successor trustee, whether or not appointed or confirmed by
court.
(42) (55) "Ward" is as described in section 525.54,
subdivision 1.
(43) (56) "Will" includes codicil and any testamentary
instrument which merely appoints an executor or revokes or
revises another will.
Sec. 2. Minnesota Statutes 1992, section 524.2-101, is
amended to read:
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 524.2-102 to 524.2-114.
(a) Any part of a decedent's estate not effectively
disposed of by will passes by intestate succession to the
decedent's heirs as prescribed in this chapter, except as
modified by the decedent's will.
(b) A decedent by will may expressly exclude or limit the
right of an individual or class to succeed to property of the
decedent passing by intestate succession. If that individual or
a member of that class survives the decedent, the share of the
decedent's intestate estate to which that individual or class
would have succeeded passes as if that individual or each member
of that class had disclaimed his or her intestate share.
Sec. 3. Minnesota Statutes 1992, section 524.2-102, is
amended to read:
524.2-102 [SHARE OF THE SPOUSE.]
The intestate share of the a decedent's 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. the entire intestate estate if:
(i) no descendant of the decedent survives the decedent; or
(ii) all of the decedent's surviving descendants are also
descendants of the surviving spouse and there is no other
descendant of the surviving spouse who survives the decedent;
(2) the first $150,000, plus one-half of any balance of the
intestate estate, if all of the decedent's surviving descendants
are also descendants of the surviving spouse and the surviving
spouse has one or more surviving descendants who are not
descendants of the decedent, or if one or more of the decedent's
surviving descendants are not descendants of the surviving
spouse.
Sec. 4. Minnesota Statutes 1992, section 524.2-103, is
amended to read:
524.2-103 [SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE.]
The Any part of the intestate estate not passing to the
decedent's surviving spouse under section 524.2-102, or the
entire intestate estate if there is no surviving spouse,
passes as follows in the following order to the individuals
designated below who survive the decedent:
(1) to the issue of the decedent; any who are children of
the decedent take equally and others decedent's descendants by
representation;
(2) if there is no surviving issue descendant, to
the parent or decedent's parents equally if both survive, or to
the surviving parent;
(3) if there is no surviving issue descendant or parent, to
the issue descendants of the decedent's parents or either of
them by representation;
(4) if there is no surviving issue descendant, parent,
or issue descendant of a parent, but the decedent is survived by
one or more grandparents or descendants of grandparents, half of
the estate passes to the decedent's paternal grandparents
equally if both survive, or to the surviving paternal
grandparent, or to the descendants of the decedent's paternal
grandparents or either of them if both are deceased, the
descendants taking by representation; and the other half passes
to the decedent's maternal relatives in the same manner; but if
there is no surviving grandparent or descendant of a grandparent
on either the paternal or the maternal side, the entire estate
passes to the decedent's relatives on the other side in the same
manner as the half;
(5) if there is no surviving descendant, parent, descendant
of a parent, grandparent, or descendant of a grandparent, 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. 5. Minnesota Statutes 1992, section 524.2-104, is
amended to read:
524.2-104 [REQUIREMENT THAT HEIR SURVIVE DECEDENT FOR 120
HOURS.]
A person An individual 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 is not established
that the person an individual who would otherwise be an heir has
survived the decedent by 120 hours, it is deemed that the person
individual failed to survive for the required period. This
section is not to be applied where if its application would
result in a taking of intestate estate by the state under
section 524.2-105.
Sec. 6. Minnesota Statutes 1992, section 524.2-105, is
amended to read:
524.2-105 [NO TAKER.]
If there is no taker under the provisions of sections
524.2-102 to 524.2-114 this article, the intestate estate passes
to the state.
Sec. 7. Minnesota Statutes 1992, section 524.2-106, is
amended to read:
524.2-106 [REPRESENTATION.]
(a) [APPLICATION.] If representation is called for
by sections 524.2-102 to 524.2-114: this article, paragraphs (b)
and (c) apply.
(1) (b) [DECEDENT'S DESCENDANTS.] In the case of issue
descendants 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 descendants who survive the
decedent, each surviving child receiving one share and the share
of each deceased child being divided among its issue descendants
in the same manner.
(2) (c) [DESCENDANTS OF PARENTS OR GRANDPARENTS.] In the
case of issue of the parents of the decedent (other than issue
of the decedent) the If, under section 524.2-103, clause (3) or
(4), a decedent's intestate estate or a part thereof passes by
"representation" to the descendants of the decedent's deceased
parents or either of them or to the descendants of the
decedent's deceased paternal or maternal grandparents or either
of them, the estate or part thereof is divided in the following
manner:
(1) In the case of descendants of the decedent's deceased
parents or either of them, the estate or part thereof is divided
into as many equal shares as there are (i) surviving heirs
descendants in the generation nearest degree of kinship and the
deceased persons in the same degree parents or either of them,
and (ii) deceased descendants in the same generation who left
issue who survived the decedent surviving descendants, if any.
Each surviving heir descendant in the nearest degree receiving
generation is allocated one share, and the share of each
deceased person in the same degree being divided among the
surviving descendants of each deceased person's children, and
the descendants of deceased children of that deceased
person descendant in the same generation are allocated one
share, to be divided in the same manner as specified in clause
(1) paragraph (b).
(2) In the case of descendants of the decedent's deceased
paternal or maternal grandparents or either of them, the estate
or part thereof is divided into as many equal shares as there
are surviving descendants in the generation nearest the deceased
grandparents or either of them that contains one or more
surviving descendants. Each surviving descendant in the nearest
generation is allocated one share.
Sec. 8. Minnesota Statutes 1992, section 524.2-108, is
amended to read:
524.2-108 [AFTERBORN AFTER-BORN HEIRS.]
Relatives of the decedent conceived before death but born
thereafter inherit as if they had been born in the lifetime of
the decedent. An individual in gestation at a particular time
is treated as living at that time if the individual lives 120
hours or more after birth.
Sec. 9. Minnesota Statutes 1992, section 524.2-109, is
amended to read:
524.2-109 [MEANING OF CHILD AND RELATED TERMS
ADVANCEMENTS.]
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 is the
child of the person's parents regardless of the marital status
of the parents and the parent and child relationship may be
established under the parentage act, sections 257.51 to 257.74.
(a) If an individual dies intestate as to all or a portion
of his or her estate, property the decedent gave during the
decedent's lifetime to an individual who, at the decedent's
death, is an heir is treated as an advancement against the
heir's intestate share only if:
(i) the decedent declared in a contemporaneous writing or
the heir acknowledged in writing that the gift is an
advancement; or
(ii) the decedent's contemporaneous writing or the heir's
written acknowledgment otherwise indicates that the gift is to
be taken into account in computing the division and distribution
of the decedent's intestate estate.
(b) For purposes of paragraph (a), property advanced is
valued as of the time the heir came into possession or enjoyment
of the property or as of the time of the decedent's death,
whichever first occurs.
(c) If the recipient of the property fails to survive the
decedent, the property is not taken into account in computing
the division and distribution of the decedent's intestate
estate, unless the decedent's contemporaneous writing provides
otherwise.
Sec. 10. Minnesota Statutes 1992, section 524.2-110, is
amended to read:
524.2-110 [ADVANCEMENTS DEBTS TO DECEDENT.]
If a person dies intestate as to all the person's estate,
property given while living to an heir is treated as an
advancement against the latter's share of the estate only if
declared in a contemporaneous writing by the decedent or
acknowledged in writing by the heir to be an advancement. For
this purpose the property advanced is valued as of the time the
heir came into possession or enjoyment of the property or as of
the time of death of the decedent, whichever first occurs. If
the recipient of the property fails to survive the decedent, the
property is not taken into account in computing the intestate
share to be received by the recipient's issue, unless the
declaration or acknowledgment provides otherwise. A debt owed
to a decedent is not charged against the intestate share of any
individual 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 descendants.
Sec. 11. Minnesota Statutes 1992, section 524.2-111, is
amended to read:
524.2-111 [DEBTS TO DECEDENT ALIENAGE.]
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.
No individual is disqualified to take as an heir because the
individual or an individual through whom he or she claims is or
has been an alien.
Sec. 12. Minnesota Statutes 1992, section 524.2-113, is
amended to read:
524.2-113 [PERSONS INDIVIDUALS RELATED TO DECEDENT THROUGH
TWO LINES.]
A person An individual who is related to the decedent
through two lines of relationship is entitled to only a single
share based on the relationship which that would entitle such
person the individual to the larger share.
Sec. 13. Minnesota Statutes 1992, section 524.2-114, is
amended to read:
524.2-114 [INSTRUMENTS REFERENCING INTESTACY LAWS MEANING
OF CHILD AND RELATED TERMS.]
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. 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 descendant 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 is the
child of the person's parents regardless of the marital status
of the parents and the parent and child relationship may be
established under the parentage act, sections 257.51 and 257.74.
Sec. 14. [524.2-115] [INSTRUMENTS REFERENCING INTESTACY
LAWS.]
If a maker has executed a will or other instrument before
the effective date of this act 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
the date of the will or other instrument, unless the will or
instrument directs otherwise.
Part 2
ELECTIVE SHARE OF SURVIVING SPOUSE
Sec. 15. [524.2-201] [DEFINITIONS.]
In this part:
(1) As used in sections other than section 524.2-205,
"decedent's nonprobate transfers to others" means the amounts
that are included in the augmented estate under section
524.2-205.
(2) "Interest in property held with right of survivorship"
means the severable interest owned by the person or persons
whose interest is being determined in property held in joint
tenancy or in other form of common ownership with a right of
survivorship. The interest shall be identified and valued as of
the time immediately prior to the death of the decedent or the
date of the transfer which causes the property to be included in
the augmented estate, as the case may be. In the case of an
account described in article VI, part 2, the severable interest
owned by the person is the amount which belonged to the person
determined under section 524.6-203. In the case of property
described in article VI, part 3, the severable interest owned by
the person is the amount consistent with section 524.6-306.
(3) "Marriage," as it relates to a transfer by the decedent
during marriage, means any marriage of the decedent to the
decedent's surviving spouse.
(4) "Nonadverse party" means a person who does not have a
substantial beneficial interest in the trust or other property
arrangement that would be adversely affected by the exercise or
nonexercise of the power that he or she possesses respecting the
trust or other property arrangement. A person having a general
power of appointment over property is deemed to have a
beneficial interest in the property.
(5) "Power" or "power of appointment" includes a power to
designate the beneficiary of an insurance policy or other
contractual arrangement.
(6) "Presently exercisable general power of appointment"
means a power possessed by a person at the time in question to
create a present or future interest in the person, in the
person's creditors, in the person's estate, or in the creditor
of the person's estate, whether or not the person then had the
capacity to exercise the power. "General power of appointment"
means a power, whether or not presently exercisable, possessed
by a person to create a present or future interest in the
person, in the person's creditors, in the person's estate, or in
creditors of the person's estate.
(7) "Probate estate" means property that would pass by
intestate succession if the decedent dies without a valid will.
(8) "Property" includes values subject to a beneficiary
designation.
(9) "Right to income" includes a right to payments under a
commercial or private annuity, an annuity trust, a unitrust, or
a similar arrangement.
(10) "Transfer" includes: (i) the exercise, release, or
lapse of a general power of appointment created by the decedent
alone or in conjunction with any other person, or exercisable by
a nonadverse party; and (ii) the exercise or release by the
decedent of a presently exercisable general power of appointment
created by someone other than the decedent. "Transfer" does not
include the lapse, other than a lapse at death, of a power
described in clause (ii).
(11) "Bona fide purchaser" means a purchaser for value in
good faith and without notice or actual knowledge of an adverse
claim, or a person who receives a payment or other item of
property in partial or full satisfaction of a legally
enforceable obligation in good faith without notice of an
adverse claim. In the case of real property located in
Minnesota purchased from a successor or successors in interest
of a decedent, the purchaser is without notice of an adverse
claim arising under this part or, if the decedent was not
domiciled in Minnesota at the time of death, arising under
similar provisions of the law of the decedent's domicile, 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, if the property is registered land, in the office
of the registrar of titles of the county in which the real
property is located, 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.
The registrar of titles is authorized to accept for registration
without production of the owner's duplicate of the certificate
of title any such notice which relates to registered land.
Sec. 16. [524.2-202] [ELECTIVE SHARE.]
(a) [ELECTIVE SHARE AMOUNT.] 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, in accordance with the following schedule:
If the decedent and the The elective-share
spouse were married to percentage is:
each other:
Less than one year Supplemental amount only
One year but less than Three percent of the
two years augmented estate
Two years but less than Six percent of the
three years augmented estate
Three years but less than Nine percent of the
four years augmented estate
Four years but less than 12 percent of the
five years augmented estate
Five years but less than 15 percent of the
six years augmented estate
Six years but less than 18 percent of the
seven years augmented estate
Seven years but less than 21 percent of the
eight years augmented estate
Eight years but less than 24 percent of the
nine years augmented estate
Nine years but less than 27 percent of the
ten years augmented estate
Ten years but less than 30 percent of the
11 years augmented estate
11 years but less than 34 percent of the
12 years augmented estate
12 years but less than 38 percent of the
13 years augmented estate
13 years but less 42 percent of the
than 14 years augmented estate
14 years but less 46 percent of the
than 15 years augmented estate
15 years or more 50 percent of the
augmented estate
(b) [SUPPLEMENTAL ELECTIVE-SHARE AMOUNT.] If the sum of the
amounts described in sections 524.2-207, 524.2-209, paragraph
(a), clause (1), and that part of the elective-share amount
payable from the decedent's probate estate and nonprobate
transfers to others under section 524.2-209, paragraphs (b) and
(c), is less than $50,000, the surviving spouse is entitled to a
supplemental elective-share amount equal to $50,000, minus the
sum of the amounts described in those sections. The
supplemental elective-share amount is payable from the
decedent's probate estate and from recipients of the decedent's
nonprobate transfers to others in the order of priority set
forth in section 524.2-209, paragraphs (b) and (c).
(c) [EFFECT OF ELECTION ON STATUTORY BENEFITS.] 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.
(d) [NONDOMICILIARY.] 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.
Sec. 17. [524.2-203] [COMPOSITION OF THE AUGMENTED
ESTATE.]
Subject to section 524.2-208, the value of the augmented
estate, to the extent provided in sections 524.2-204, 524.2-205,
524.2-206, and 524.2-207, 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.
Sec. 18. [524.2-204] [DECEDENT'S NET PROBATE ESTATE.]
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.
Sec. 19. [524.2-205] [DECEDENT'S NONPROBATE TRANSFERS TO
OTHERS.]
The value of the augmented estate includes the value of the
decedent's nonprobate transfers to others, other than the
homestead, of any of the following types, in the amount provided
respectively for each type of transfer.
(1) Property owned or owned in substance by the decedent
immediately before death that passed outside probate at the
decedent's death. Property included under this category
consists of:
(i) Property over which the decedent alone, immediately
before death, held a presently exercisable general power of
appointment. The amount included is the value of the property
subject to the power, to the extent the property passed at the
decedent's death, by exercise, release, lapse, default, or
otherwise, to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(ii) The decedent's interest in property held with the
right of survivorship. The amount included is the value of the
decedent's interest, to the extent the interest passed by right
of survivorship at the decedent's death to someone other than
the decedent's surviving spouse.
(iii) Proceeds of insurance, including accidental death
benefits, on the life of the decedent, if the decedent owned the
insurance policy immediately before death or if and to the
extent the decedent alone and immediately before death held a
presently exercisable general power of appointment over the
policy or its proceeds. The amount included is the value of the
proceeds, to the extent they were payable at the decedent's
death to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(iv) The value payable after the decedent's death to or for
the benefit of any person other than the decedent's surviving
spouse of the proceeds of annuity contracts under which the
decedent was the primary annuitant. The amount included is any
amount over which the person has an immediate right of
withdrawal after the decedent's death plus the commuted value of
other amounts payable in the future.
(v) The value payable after the decedent's death to or for
the benefit of any person other than the decedent's surviving
spouse of amounts under any public or private pension,
disability compensation, benefit, or retirement plan or account,
excluding the federal Social Security system. The amount
included is any amount over which the person has an immediate
right of withdrawal after the decedent's death plus the commuted
value of other amounts payable in the future.
(2) Property transferred in any of the following forms by
the decedent during marriage, to the extent not included under
paragraph (1):
(i) 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. The
amount included is the value of the fraction of the property to
which the decedent's right related, to the extent the fraction
of the property passed outside probate to or for the benefit of
any person other than the decedent's estate or surviving spouse.
(ii) Any transfer in which the decedent created a general
power of appointment over income or property exercisable by the
decedent alone or in conjunction with any other person, or
exercisable by a nonadverse party. The amount included with
respect to a power over property is the value of the property
subject to the power, and the amount included with respect to a
power over income is the value of the property that produces or
produced the income, to the extent in either case that the
property passed at the decedent's death to or for the benefit of
any person other than the decedent's estate or surviving
spouse. If the power is a power over both income and property
and the preceding sentence produces different amounts, the
amount included is the greater amount.
(3) 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:
(i) Any property that passed as a result of the termination
of a right or interest in, or power over, property that would
have been included in the augmented estate under paragraph (1),
clause (i), (ii), (iv), or (v), or under paragraph (2), if the
right, interest, or power had not terminated until the
decedent's death. The amount included is the value of the
property that would have been included under those paragraphs if
the property were valued at the time the right, interest, or
power terminated, and is included only to the extent the
property passed upon termination to or for the benefit of any
person other than the decedent or the decedent's estate, spouse,
or surviving spouse. As used in this paragraph, "termination,"
with respect to a right or interest in property, occurs when the
power is terminated by exercise, release, default, or otherwise,
but with respect to a power described in paragraph (1), clause
(i), "termination" occurs when the power is terminated by
exercise or release, but not otherwise.
(ii) Any transfer of or relating to an insurance policy on
the life of the decedent if the proceeds would have been
included in the augmented estate under paragraph (1), clause
(iii), had the transfer not occurred. The amount included is
the value of the insurance proceeds to the extent the proceeds
were payable at the decedent's death to or for the benefit of
any person other than the decedent's estate or surviving spouse.
(iii) Any transfer of property, to the extent not otherwise
included in the augmented estate, made to or for the benefit of
a person other than the decedent's surviving spouse. 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.
Sec. 20. [524.2-206] [DECEDENT'S NONPROBATE TRANSFERS TO
THE SURVIVING SPOUSE.]
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, which
consists of all property that passed outside probate at the
decedent's death from the decedent to the surviving spouse by
reason of the decedent's death that would have been included in
the augmented estate under section 524.2-205, paragraph (1) or
(2), had the property passed to or for the benefit of a person
other than the decedent's spouse, the decedent, or the
decedent's creditors, estate, or estate creditors.
Sec. 21. [524.2-207] [SURVIVING SPOUSE'S PROPERTY AND
NONPROBATE TRANSFERS TO OTHERS.]
(a) [INCLUDED PROPERTY.] Except to the extent included in
the augmented estate under section 524.2-204 or 524.2-206, the
value of the augmented estate includes the value of:
(1) 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; and
(2) property that would have been included in the surviving
spouse's nonprobate transfers to others, other than the spouse's
interest in property held with right of survivorship included
under clause (1), had the spouse been the decedent.
(b) [TIME OF VALUATION.] Property included under this
section is valued at the decedent's death, taking the fact that
the decedent predeceased the spouse into account, but, for
purposes of the surviving spouse's interest in property held
with right of survivorship included under paragraph (a), clause
(1), the value of the spouse's interest is determined
immediately before the decedent's death if the decedent was then
a joint tenant or a coowner of the property or accounts. For
purposes of paragraph (a), clause (2), proceeds of insurance
that would have been included in the spouse's nonprobate
transfers to others under section 524.2-205, paragraph (1),
clause (iii), are not valued as if the spouse were deceased.
(c) [REDUCTION FOR ENFORCEABLE CLAIMS.] The value of
property included under this section is reduced by mortgages,
liens, and enforceable claims against the property or against
the surviving spouse.
Sec. 22. [524.2-208] [EXCLUSIONS, VALUATION, AND
OVERLAPPING APPLICATION.]
(a) [EXCLUSIONS.] The value of any property is excluded
from the decedent's nonprobate 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.
(b) [PROTECTION OF BONA FIDE PURCHASERS.] A bona fide
purchaser who purchases property from a successor or successors
in interest of the decedent or from a transferee of the decedent
is neither obligated under this part to return the payment, item
of property, or benefit nor is liable under this part for the
amount of the payment or the value of the item of property or
benefit.
(c) [VALUATION.] The value of property:
(1) included in the augmented estate under section
524.2-205, 524.2-206, or 524.2-207 is reduced in each category
by mortgages, liens, and enforceable claims against the included
property; and
(2) includes the commuted value of any present or future
interest and the commuted value of amounts payable under any
trust, life insurance settlement option, annuity contract,
public or private pension, disability compensation, death
benefit or retirement plan, or any similar arrangement,
exclusive of the federal Social Security system. 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.
(d) [OVERLAPPING APPLICATION; NO DOUBLE INCLUSION.] In case
of overlapping application to the same property of portions of
section 524.2-205, 524.2-206, or 524.2-207, the property is
included in the augmented estate under the provision yielding
the greatest value, and under only one overlapping provision if
they all yield the same value.
Sec. 23. [524.2-209] [SOURCES FROM WHICH ELECTIVE SHARE
PAYABLE.]
(a) [ELECTIVE-SHARE AMOUNT ONLY.] 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:
(1) amounts included in the augmented estate under section
524.2-204 which pass or have passed to the surviving spouse by
testate or intestate succession and amounts included in the
augmented estate under section 524.2-206;
(2) amounts included in the augmented estate which would
have passed to the spouse but were disclaimed; and
(3) amounts included in the augmented estate under section
524.2-207 up to the applicable percentage thereof. For the
purposes of this paragraph, the "applicable percentage" 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.
(b) [UNSATISFIED BALANCE OF ELECTIVE-SHARE AMOUNT;
SUPPLEMENTAL ELECTIVE-SHARE AMOUNT.] If, after the application
of paragraph (a), the elective-share amount is not fully
satisfied or the surviving spouse is entitled to a supplemental
elective-share amount, amounts included in the decedent's
probate estate and in the decedent's nonprobate transfers to
others, other than amounts included under section 524.2-205,
paragraph (3), clause (i) or (iii), are applied first to satisfy
the unsatisfied balance of the elective-share amount or the
supplemental elective-share amount. The decedent's probate
estate and that portion of the decedent's nonprobate transfers
to others are so applied that liability for the unsatisfied
balance of the elective-share amount or for the supplemental
elective-share amount 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.
(c) [UNSATISFIED BALANCE OF ELECTIVE-SHARE AND SUPPLEMENTAL
ELECTIVE-SHARE AMOUNTS.] If, after the application of paragraphs
(a) and (b), the elective-share or supplemental elective-share
amount is not fully satisfied, the remaining portion of the
decedent's nonprobate transfers to others is so applied that
liability for the unsatisfied balance of the elective-share or
supplemental elective-share amount is equitably apportioned
among the recipients of the remaining portion of the decedent's
nonprobate transfers to others in proportion to the value of
their interests therein.
Sec. 24. [524.2-210] [PERSONAL LIABILITY OF RECIPIENTS.]
(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 toward satisfaction of the surviving
spouse's elective-share or supplemental elective-share amount.
A person liable to make contribution may choose to give up the
proportional part of the decedent's nonprobate transfers to him
or her or to pay the value the amount for which he or she is
liable.
(b) If any section or part of any section of this part is
preempted by federal law with respect to a payment, an item of
property, or any other benefit included in the decedent's
nonprobate transfers to others, a person who is not a bona fide
purchaser and who receives the payment, item of property, or any
other benefit is obligated to return the payment, item of
property, or benefit, or is personally liable for the amount of
the payment or the value of that item of property or benefit, as
provided in section 524.2-209, to the person who would have been
entitled to it were that section or part of that section not
preempted.
Sec. 25. [524.2-211] [PROCEEDING FOR ELECTIVE SHARE; TIME
LIMIT.]
(a) Except as provided in paragraph (b), 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. 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. Except
as provided in paragraph (b), 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.
(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. 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. If the court grants the spouse's
petition for an extension, the decedent's nonprobate transfers
to others are not excluded from the augmented estate for the
purpose of computing the elective-share and supplemental
elective-share amounts, if the spouse makes an election by
filing in the court and mailing or delivering to the personal
representative, if any, a petition for the elective share within
the time allowed by the extension.
(c) The surviving spouse may withdraw his or her demand for
an elective share at any time before entry of a final
determination by the court.
(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. If it appears that a fund or property
included in the augmented 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 or she would have been under sections
524.2-209 and 524.2-210 had relief been secured against all
persons subject to contribution.
(e) An order of judgment of the court may be enforced as
necessary in suit for contribution or payment in other courts of
this state or other jurisdictions.
(f) Whether or not an election has been made under
paragraph (a), the surviving spouse may elect statutory rights
in the homestead by filing in the manner provided in this
section a petition in which the spouse asserts the rights
provided in section 524.2-402, provided that:
(1) when the homestead is subject to a testamentary
disposition, the filing must be within nine months after the
date of death, or within six months after the probate of the
decedent's will, whichever limitation last expires; or
(2) where the homestead is subject to other disposition,
the filing must be within nine months after the date of death.
The court may extend the time for election in the manner
provided in paragraph (b).
Sec. 26. [524.2-212] [RIGHT OF ELECTION PERSONAL TO
SURVIVING SPOUSE.]
The right of election of the surviving spouse may be
exercised only during the surviving spouse's lifetime. 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 the protected person's property are pending,
after finding (1) that exercise is necessary to provide adequate
support for the protected person during the protected person's
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. 27. [524.2-213] [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 the elective share. Any waiver
prior to marriage must be made pursuant to section 519.11.
Sec. 28. [524.2-214] [PROTECTION OF PAYORS AND OTHER THIRD
PARTIES.]
(a) Although under section 524.2-205 a payment, item of
property, or other benefit is included in the decedent's
nonprobate transfers to others, a payor or other third party is
not liable for having made a payment or transferred an item of
property or other benefit to a beneficiary designated in a
governing instrument, or for having taken any other action in
good faith reliance on the validity of a governing instrument,
upon request and satisfactory proof of the decedent's death,
before the payor or other third party received written notice
from the surviving spouse or spouse's representative of an
intention to file a petition for the elective share or that a
petition for the elective share has been filed. 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.
(b) A written notice of intention to file a petition for
the elective share or that a petition for the elective share has
been filed 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. Upon receipt
of written notice of intention to file a petition for the
elective share or that a petition for the elective share has
been filed, a payor or other third party may pay any amount owed
or transfer or deposit any item of property held by it to or
with the court having jurisdiction of the probate proceedings
relating to the decedent's estate or, if no proceedings have
been commenced, to or with the court having jurisdiction of
probate proceedings relating to decedents' estates located in
the county of the decedent's residence. The court shall hold
the funds or item of property and, upon its determination under
section 524.2-211, paragraph (d), shall order disbursement in
accordance with the determination. If no petition is filed in
the court within the specified time under section 524.2-211,
paragraph (a), or, if filed, the demand for an elective share is
withdrawn under section 524.2-211, paragraph (c), the court
shall order disbursement to the designated beneficiary.
Payments or transfers to the court or deposits made into court
discharge the payor or other third party from all claims for
amounts so paid or the value of property so transferred or
deposited.
(c) Upon petition to the court described in paragraph (b)
by the beneficiary designated in the governing instrument, the
court may order that all or part of the property be paid to the
beneficiary in an amount and subject to conditions consistent
with this part.
Sec. 29. Minnesota Statutes 1992, section 524.2-301, is
amended to read:
524.2-301 [OMITTED ENTITLEMENT OF SPOUSE; PREMARITAL WILL.]
(a) If a testator fails to provide by will for a surviving
spouse who married the testator after the execution of the will,
the omitted spouse shall receive the same share of the estate as
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.
(a) If a testator's surviving spouse married the testator
after the testator executed his or her will, the surviving
spouse is entitled to receive, as an intestate share, no less
than the value of the share of the estate he or she would have
received if the testator had died intestate as to that portion
of the testator's estate, if any, that neither is devised to a
child of the testator who was born before the testator married
the surviving spouse and who is not a child of the surviving
spouse nor is devised to a descendant of such a child or passes
under section 524.2-603 or 524.2-604 to such a child or to a
descendant of such a child, unless:
(1) it appears from the will or other evidence that the
will was made in contemplation of the testator's marriage to the
surviving spouse;
(2) the will expresses the intention that it is to be
effective notwithstanding any subsequent marriage; or
(3) 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 the testator's statements
or is reasonably inferred from the amount of the transfer or
other evidence.
(b) In satisfying the share provided by this section,
devises made by the will to the testator's surviving spouse, if
any, are applied first, and other devises, other than a devise
to a child of the testator who was born before the testator
married the surviving spouse and who is not a child of the
surviving spouse or a devise or substitute gift under section
524.2-603 or 524.2-604 to a descendant of such a child, abate as
provided in section 524.3-902.
Sec. 30. Minnesota Statutes 1992, section 524.2-302, is
amended to read:
524.2-302 [PRETERMITTED OMITTED CHILDREN.]
(a) If a testator fails to provide for any child born or
adopted after the execution of the testator's will, the omitted
child receives a share in the estate equal in value to that
which that child 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 the 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 for a living child solely because of a belief
that the child is dead, the child receives a share in the estate
equal in value to that which that child 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.
(a) Except as provided in paragraph (b), if a testator
fails to provide in his or her will for any of his or her
children born or adopted after the execution of the will, the
omitted after-born or after-adopted child receives a share in
the estate as follows:
(1) If the testator had no child living when he or she
executed the will, an omitted after-born or after-adopted child
receives a share in the estate equal in value to that which the
child would have received had the testator died intestate,
unless the will devised all or substantially all the estate to
the other parent of the omitted child and that other parent
survives the testator and is entitled to take under the will.
(2) If the testator had one or more children living when he
or she executed the will, and the will devised property or an
interest in property to one or more of the then-living children,
an omitted after-born or after-adopted child is entitled to
share in the testator's estate as follows:
(i) The portion of the testator's estate in which the
omitted after-born or after-adopted child is entitled to share
is limited to devises made to the testator's then-living
children under the will.
(ii) The omitted after-born or after-adopted child is
entitled to receive the share of the testator's estate, as
limited in subclause (i), that the child would have received had
the testator included all omitted after-born and after-adopted
children with the children to whom devises were made under the
will and had given an equal share of the estate to each child.
(iii) To the extent feasible, the interest granted an
omitted after-born or after-adopted child under this section
must be of the same character, whether equitable or legal,
present or future, as that devised to the testator's then-living
children under the will.
(iv) In satisfying a share provided by this paragraph,
devises to the testator's children who were living when the will
was executed abate ratably. In abating the devises of the
then-living children, the court shall preserve to the maximum
extent possible the character of the testamentary plan adopted
by the testator.
(b) Neither paragraph (a), clause (1) or (2), nor paragraph
(c), applies if:
(1) it appears from the will that the omission was
intentional; or
(2) the testator provided for the omitted after-born or
after-adopted child by transfer outside the will and the intent
that the transfer be in lieu of a testamentary provision is
shown by the testator's statements or is reasonably inferred
from the amount of the transfer or other evidence.
(c) If at the time of execution of the will the testator
fails to provide in his or her will for a living child solely
because he or she believes the child to be dead, the child
receives a share in the estate equal in value to that which the
child would have received had the testator died intestate.
(d) In satisfying a share provided by paragraph (a), clause
(1), or (c), devises made by the will abate under section
524.3-902.
Part 4
EXEMPT PROPERTY AND ALLOWANCES
Sec. 31. [524.2-401] [APPLICABLE LAW.]
This part applies to the estate of a decedent who dies
domiciled in this state. Rights to homestead, exempt property,
and family allowance for a decedent who dies not domiciled in
this state are governed by the law of the decedent's domicile at
death.
Sec. 32. [524.2-402] [DESCENT OF HOMESTEAD.]
(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, as follows:
(1) if there is no surviving descendant of decedent, to the
spouse; or
(2) if there are surviving descendants of decedent, then 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.
(b) If there is no surviving spouse and the homestead has
not been disposed of by will it descends as other real estate.
(c) If the homestead passes by descent or will to the
spouse or decedent's descendants, it is exempt from all debts
which were not valid charges on it at the time of decedent's
death except that the homestead is 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 decedent's descendants, it is
subject to the payment of the items mentioned in section
524.2-101. No lien or other charge against a homestead so
exempted is enforceable in the probate court, but the claimant
may enforce the lien or charge by an appropriate action in the
district court.
(d) 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.
Sec. 33. [524.2-403] [EXEMPT PROPERTY.]
(a) If there is a surviving spouse, then, in addition to
the homestead and family allowance, the surviving spouse is
entitled from the estate to:
(1) property not exceeding $10,000 in value in excess of
any security interests therein, in household furniture,
furnishings, appliances, and personal effects, subject to an
award of sentimental value property under section 525.152; and
(2) one automobile, if any, without regard to value.
(b) If there is no surviving spouse, the decedent's
children are entitled jointly to the same property as provided
in paragraph (a).
(c) If encumbered chattels are selected and the value in
excess of security interests, plus that of other exempt
property, is less than $10,000, or if there is not $10,000 worth
of exempt property in the estate, the surviving spouse or
children are entitled to other personal property of the estate,
if any, to the extent necessary to make up the $10,000 value.
(d) Rights to exempt property and assets needed to make up
a deficiency of exempt property have priority over all claims
against the estate, but the right to any assets to make up a
deficiency of exempt property abates as necessary to permit
earlier payment of the family allowance.
(e) The rights granted by this section are in addition to
any benefit or share passing to the surviving spouse or children
by the decedent's will, unless otherwise provided by intestate
succession or by way of elective share.
Sec. 34. [524.2-404] [FAMILY ALLOWANCE.]
(a) In addition to the right to the homestead and exempt
property, the decedent's surviving spouse and minor children
whom the decedent was obligated to support, and children who
were in fact being supported by the decedent, shall be allowed a
reasonable family allowance in money out of the estate for their
maintenance as follows:
(1) for one year if the estate is inadequate to discharge
allowed claims; or
(2) for 18 months if the estate is adequate to discharge
allowed claims.
(b) The amount of the family allowance may be determined by
the personal representative in an amount not to exceed $1,500
per month.
(c) The family allowance is payable to the surviving
spouse, if living; otherwise to the children, their guardian or
conservator, or persons having their care and custody.
(d) The family allowance is exempt from and has priority
over all claims.
(e) The family allowance is not chargeable against any
benefit or share passing to the surviving spouse or children by
the will of the decedent unless otherwise provided, by intestate
succession or by way of elective share. The death of any person
entitled to family allowance does not terminate the right of
that person to the allowance.
(f) The personal representative or an interested person
aggrieved by any determination, payment, proposed payment, or
failure to act under this section may petition the court for
appropriate relief, which may include a family allowance other
than that which the personal representative determined or could
have determined.
Sec. 35. [524.2-405] [SOURCE, DETERMINATION, AND
DOCUMENTATION.]
(a) If the estate is otherwise sufficient, property
specifically devised may not be used to satisfy rights to exempt
property. Subject to this restriction, the surviving spouse,
guardians or conservators of minor children, or children who are
adults may select property of the estate as exempt property.
The personal representative may make those selections if the
surviving spouse, the children, or the guardians of the minor
children are unable or fail to do so within a reasonable time or
there is no guardian of a minor child.
(b) The personal representative may execute an instrument
or deed of distribution to establish the ownership of property
taken as exempt property.
(c) The personal representative or an interested person
aggrieved by any selection, determination, payment, proposed
payment, or failure to act under this section may petition the
court for appropriate relief, which may include a selection or
determination under this section other than that which the
surviving spouse, guardians or conservators of minor children,
children who are adults, or the personal representative
selected, could have selected, determined, or could have
determined.
Sec. 36. Minnesota Statutes 1992, section 524.2-502, is
amended to read:
524.2-502 [EXECUTION; WITNESSED WILLS.]
Except as provided for writings within section 524.2-513
and wills within section 524.2-506, every will shall be in
writing signed by the testator or in the testator's name by some
other person in the testator's presence and by the testator's
direction, and shall be signed by at least two persons each of
whom witnessed either the signing or the testator's
acknowledgment of the signature or of the will. Except as
provided in sections 524.2-506 and 524.2-513, a will must be:
(1) in writing;
(2) signed by the testator or in the testator's name by
some other individual in the testator's conscious presence and
by the testator's direction; and
(3) signed by at least two individuals, each of whom signed
within a reasonable time after he or she witnessed either the
signing of the will as described in clause (2) or the testator's
acknowledgment of that signature or acknowledgment of the will.
Sec. 37. Minnesota Statutes 1992, section 524.2-504, is
amended to read:
524.2-504 [SELF-PROVED WILL.]
An attested will may at the time of its execution or at any
subsequent date be made self-proved, by the acknowledgment
thereof by the testator and the affidavits of the witnesses,
each made before an officer authorized to administer oaths under
the laws of this state, or under the laws of the state where
execution occurs, and evidenced by the officer's certificate,
under official seal, attached or annexed to the will in form and
content substantially as follows:
THE STATE OF ...................
COUNTY OF ......................
We, ..........., ............, and ............, the
testator and the witnesses, respectively, whose names are signed
to the attached or foregoing instrument, being first duly sworn,
do hereby declare to the undersigned authority that the testator
signed and executed the instrument as the testator's last will,
that the testator signed it willingly or directed another to
sign it for the testator, that it was executed as a free and
voluntary act for the purposes therein expressed, and that each
of the witnesses, in the presence and hearing of the testator,
signed the will as witnesses, and that to the best of their
knowledge the testator was at the time 18 or more years of age,
of sound mind and under no constraint or undue influence.
........................
Testator
........................
Witness
........................
Witness
Subscribed, sworn to and acknowledged before me by
............, the testator, and subscribed and sworn to before
me by ............. and .............., witnesses, this ......
day of ......., ....... .
(SEAL) (Signed)......................
..............................
(Official capacity of officer)
(a) A will may be contemporaneously executed, attested, and
made self-proved, by acknowledgment thereof by the testator and
affidavits of the witnesses, each made before an officer
authorized to administer oaths under the laws of the state in
which execution occurs and evidenced by the officer's
certificate, under official seal, in substantially the following
form:
I, ............, the testator, sign my name to this
instrument this ... day of ............, and being first duly
sworn, do hereby declare to the undersigned authority that I
sign and execute this instrument as my will and that I sign it
willingly (or willingly direct another to sign for me), that I
execute it as my free and voluntary act for the purposes therein
expressed, and that I am 18 years of age or older, of sound
mind, and under no constraint or undue influence.
........................
Testator
We, ............, ............, the witnesses, sign our
names to this instrument, being first duly sworn, and do hereby
declare to the undersigned authority that the testator signs and
executes this instrument as the testator's will and that the
testator signs it willingly (or willingly directs another to
sign for the testator), and that each of us, in the presence and
hearing of the testator, hereby signs this will as witness to
the testator's signing, and that to the best of our knowledge
the testator is 18 years of age or older, of sound mind, and
under no constraint or undue influence.
...............................
Witness
...............................
Witness
State of ................
County of ...............
Subscribed, sworn to, and acknowledged before me by
............, the testator, and subscribed and sworn to before
me by ............, and ............, witnesses, this ... day of
........, .... .
(Seal)
(Signed)......................................
..............................................
(Official capacity of officer)
(b) An attested will may be made self-proved at any time
after its execution by the acknowledgment thereof by the
testator and the affidavits of the witnesses, each made before
an officer authorized to administer oaths under the laws of the
state in which the acknowledgment occurs and evidenced by the
officer's certificate, under the official seal, attached or
annexed to the will in substantially the following form:
State of ................
County of ...............
We, ............, ............, and ............, the
testator and the witnesses, respectively, whose names are signed
to the attached or foregoing instrument, being first duly sworn,
do hereby declare to the undersigned authority that the testator
signed and executed the instrument as the testator's will and
that the testator had signed willingly (or willingly directed
another to sign for the testator), and that the testator
executed it as the testator's free and voluntary act for the
purposes therein expressed, and each of the witnesses, in the
presence and hearing of the testator, signed the will as witness
and that to the best of the witness' knowledge the testator was
at the time 18 years of age or older, of sound mind, and under
no constraint or undue influence.
.............................
Testator
.............................
Witness
.............................
Witness
Subscribed, sworn to, and acknowledged before me by
............, the testator, and subscribed and sworn to before
me by ............, and ............, witnesses, this ... day of
.........., .... .
(Seal)
(Signed)..........................
..................................
(Official capacity of officer)
(c) A signature affixed to a self-proving affidavit
attached to a will is considered a signature affixed to the
will, if necessary to prove the will's due execution.
Sec. 38. Minnesota Statutes 1992, section 524.2-505, is
amended to read:
524.2-505 [WHO MAY WITNESS.]
(a) Any person An individual generally competent to be a
witness may act as a witness to a will.
(b) A will is not invalid because the will is signed The
signing of a will by an interested witness does not invalidate
the will or any provision of it.
Sec. 39. Minnesota Statutes 1992, section 524.2-507, is
amended to read:
524.2-507 [REVOCATION BY WRITING OR BY ACT.]
(a) A will or any part thereof is revoked:
(1) by a subsequent will which revokes the prior will or
part expressly or by inconsistency; or
(2) by being burned, torn, canceled, obliterated, or
destroyed, with the intent and for the purpose of revoking it by
the testator or by another person in the testator's presence and
by the testator's direction. by executing a subsequent will that
revokes the previous will or part expressly or by inconsistency;
or
(2) by performing a revocatory act on the will, if the
testator performed the act with the intent and for the purpose
of revoking the will or part or if another individual performed
the act in the testator's conscious presence and by the
testator's direction. For purposes of this clause, "revocatory
act on the will" includes burning, tearing, canceling,
obliterating, or destroying the will or any part of it. A
burning, tearing, or canceling may be a "revocatory act on the
will," whether or not the burn, tear, or cancellation touched
any of the words on the will.
(b) If a subsequent will does not expressly revoke a
previous will, the execution of the subsequent will wholly
revokes the previous will by inconsistency if the testator
intended the subsequent will to replace rather than supplement
the previous will.
(c) The testator is presumed to have intended a subsequent
will to replace rather than supplement a previous will if the
subsequent will makes a complete disposition of the testator's
estate. If this presumption arises and is not rebutted by clear
and convincing evidence, the previous will is revoked; only the
subsequent will is operative on the testator's death.
(d) The testator is presumed to have intended a subsequent
will to supplement rather than replace a previous will if the
subsequent will does not make a complete disposition of the
testator's estate. If this presumption arises and is not
rebutted by clear and convincing evidence, the subsequent will
revokes the previous will only to the extent the subsequent will
is inconsistent with the previous will; each will is fully
operative on the testator's death to the extent they are not
inconsistent.
Sec. 40. Minnesota Statutes 1992, section 524.2-508, is
amended to read:
524.2-508 [REVOCATION BY DISSOLUTION OF MARRIAGE; NO
REVOCATION BY OTHER CHANGES OF CIRCUMSTANCES.]
If after executing a will the testator's marriage is
dissolved or annulled, the dissolution or annulment revokes any
disposition or appointment of property made by the will to the
former spouse, any provision conferring a general or special
power of appointment on the former spouse, and any nomination of
the former spouse as executor, trustee, conservator, or
guardian, unless the will expressly provides otherwise.
Property prevented from passing to a former spouse because of
revocation by dissolution of marriage or annulment passes as if
the former spouse failed to survive the decedent, and other
provisions conferring some power or office on the former spouse
are interpreted as if the spouse failed to survive the decedent.
If provisions are revoked solely by this section, they are
revived by testator's remarriage to the former spouse. For
purposes of this chapter and chapter 525, dissolution of
marriage includes divorce. A decree of separation which does
not terminate the status of husband and wife is not a
dissolution of marriage for purposes of this section. No change
of circumstances other than as described in this section revokes
a will.
Except as provided in sections 524.2-802 and 524.2-803, a
change of circumstances does not revoke a will or any part of it.
Sec. 41. Minnesota Statutes 1992, section 524.2-509, is
amended to read:
524.2-509 [REVIVAL OF REVOKED WILL.]
(a) If a second will which, had it remained effective at
death, would have revoked the first will in whole or in part, is
thereafter revoked by acts under section 524.2-507, the first
will is revoked in whole or in part unless it is evident from
the circumstances of the revocation of the second will or from
testator's contemporary or subsequent declarations that the
testator intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at
death, would have revoked the first will in whole or in part, is
thereafter revoked by a third will, the first will is revoked in
whole or in part, except to the extent it appears from the terms
of the third will that the testator intended the first will to
take effect.
(a) If a subsequent will that wholly revoked a previous
will is thereafter revoked by a revocatory act under section
524.2-507, paragraph (a), clause (2), the previous will remains
revoked unless it is revived. The previous will is revived if
it is evident from the circumstances of the revocation of the
subsequent will or from the testator's contemporary or
subsequent declarations that the testator intended the previous
will to take effect as executed.
(b) If a subsequent will that partly revoked a previous
will is thereafter revoked by a revocatory act under section
524.2-507, paragraph (a), clause (2), a revoked part of the
previous will is revived unless it is evident from the
circumstances of the revocation of the subsequent will or from
the testator's contemporary or subsequent declarations that the
testator did not intend the revoked part to take effect as
executed.
(c) If a subsequent will that revoked a previous will in
whole or in part is thereafter revoked by another later will,
the previous will remains revoked in whole or in part, unless it
or its revoked part is revived. The previous will or its
revoked part is revived to the extent it appears from the terms
of the later will that the testator intended the previous will
to take effect.
Sec. 42. [524.2-511] [TESTAMENTARY ADDITIONS TO TRUSTS.]
(a) A will may validly devise property to the trustee of a
trust established or to be established (i) during the testator's
lifetime by the testator, by the testator and some other person,
or by some other person, including a funded or unfunded life
insurance trust, although the settlor has reserved any or all
rights of ownership of the insurance contracts, or (ii) at the
testator's death by the testator's devise to the trustee, if, in
either case, the trust is identified in the testator's will and
its terms are set forth in a written instrument, other than a
will, executed before, concurrently with, or after the execution
of the testator's will or in another individual's will if that
other individual has predeceased the testator, regardless of the
existence, size, or character of the corpus of the trust. The
devise is not invalid because the trust is amendable or
revocable, or because the trust was amended after the execution
of the will or the testator's death.
(b) Unless the testator's will provides otherwise, property
devised to a trust described in paragraph (a) is not held under
a testamentary trust of the testator, but it becomes a part of
the trust to which it is devised, and must be administered and
disposed of in accordance with the provisions of the governing
instrument setting forth the terms of the trust, including any
amendments thereto made before or after the testator's death.
(c) Unless the testator's will provides otherwise, a
revocation or termination of the trust before the testator's
death causes the devise to lapse.
(d) This section does not invalidate a devise made by a
will executed before February 21, 1963.
Sec. 43. Minnesota Statutes 1992, section 524.2-512, is
amended to read:
524.2-512 [EVENTS OF INDEPENDENT SIGNIFICANCE.]
A will may dispose of property by reference to acts and
events which that have significance apart from their effect upon
the dispositions made by the will, whether they occur before or
after the execution of the will or before or after the
testator's death. The execution or revocation of a another
individual's will of another person is such an event.
Sec. 44. [524.2-514] [CONTRACTS CONCERNING SUCCESSION.]
A contract to make a will or devise, or not to revoke a
will or devise, or to die intestate, if executed after January
1, 1976, may be established only by (i) provisions of a will
stating material provisions of the contract, (ii) an express
reference in a will to a contract and extrinsic evidence proving
the terms of the contract, or (iii) a writing signed by the
decedent evidencing the contract. The execution of a joint will
or mutual wills does not create a presumption of a contract not
to revoke the will or wills.
Sec. 45. [524.2-515] [DEPOSIT OF WILL WITH COURT IN
TESTATOR'S LIFETIME.]
A will may be deposited by the testator or the testator's
agent with any court for safekeeping, under rules of the court.
The will must be sealed and kept confidential. During the
testator's lifetime, a deposited will must be delivered only to
the testator or to a person authorized in writing signed by the
testator to receive the will. A conservator or guardian may be
allowed to examine a deposited will of a protected testator
under procedures designed to maintain the confidential character
of the document to the extent possible, and to ensure that it
will be resealed and kept on deposit after the examination.
Upon being informed of the testator's death, the court may
deliver the will to the appropriate court.
Sec. 46. [524.2-516] [DUTY OF CUSTODIAN OF WILL;
LIABILITY.]
After the death of a testator and on request of an
interested person, a person having custody of a will of the
testator shall deliver it with reasonable promptness to an
appropriate court. A person who willfully fails to deliver a
will is liable to any person aggrieved for any damages that may
be sustained by the failure. A person who willfully refuses or
fails to deliver a will after being ordered by the court in a
proceeding brought for the purpose of compelling delivery is
subject to penalty for contempt of court.
Sec. 47. [524.2-517] [PENALTY CLAUSE FOR CONTEST.]
A provision in a will purporting to penalize an interested
person for contesting the will or instituting other proceedings
relating to the estate is unenforceable if probable cause exists
for instituting proceedings.
Part 6
RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS
Sec. 48. [524.2-601] [SCOPE.]
In the absence of a finding of a contrary intention, the
rules of construction in this part control the construction of a
will.
Sec. 49. Minnesota Statutes 1992, section 524.2-602, is
amended to read:
524.2-602 [CHOICE OF LAW AS TO MEANING AND EFFECT OF
WILLS WILL MAY PASS ALL PROPERTY AND AFTER-ACQUIRED PROPERTY.]
The meaning and legal effect of a disposition in a will
shall be determined by the local law of a particular state
selected by the testator in the testator's instrument unless the
application of that law is contrary to the public policy of this
state otherwise applicable to the disposition. A will may
provide for the passage of all property the testator owns at
death and all property acquired by the estate after the
testator's death.
Sec. 50. Minnesota Statutes 1992, section 524.2-603, is
amended to read:
524.2-603 [RULES OF CONSTRUCTION AND INTENTION ANTILAPSE;
DECEASED DEVISEE; CLASS GIFTS.]
The intention of a testator as expressed in the testator's
will controls the legal effect of the testator's dispositions.
The rules of construction expressed in the succeeding sections
of this part apply unless a contrary intention is indicated by
the will.
(a) [DEFINITIONS.] In this section:
(1) "Alternative devise" means a devise that is expressly
created by the will and, under the terms of the will, can take
effect instead of another devise on the happening of one or more
events, including survival of the testator or failure to survive
the testator, whether an event is expressed in
condition-precedent, condition-subsequent, or any other form. A
residuary clause constitutes an alternative devise with respect
to a nonresiduary devise only if the will specifically provides
that, upon lapse or failure, the nonresiduary devise, or
nonresiduary devises in general, pass under the residuary clause.
(2) "Class member" includes an individual who fails to
survive the testator but who would have taken under a devise in
the form of a class gift had he or she survived the testator.
(3) "Devise" includes an alternative devise, a devise in
the form of a class gift, and an exercise of a power of
appointment.
(4) "Devisee" includes (i) a class member if the devise is
in the form of a class gift, (ii) an individual or class member
who was deceased at the time the testator executed his or her
will as well as an individual or class member who was then
living but who failed to survive the testator, and (iii) an
appointee under a power of appointment exercised by the
testator's will.
(5) "Surviving devisee" or "surviving descendant" means a
devisee or a descendant who neither predeceased the testator nor
is deemed to have predeceased the testator under section
524.2-702.
(6) "Testator" includes the donee of a power of appointment
if the power is exercised in the testator's will.
(b) [SUBSTITUTE GIFT.] If a devisee fails to survive the
testator and is a grandparent or a descendant of a grandparent
of either the testator or the donor of a power of appointment
exercised by the testator's will, the following apply:
(1) Except as provided in paragraph (4), if the devise is
not in the form of a class gift and the deceased devisee leaves
surviving descendants, a substitute gift is created in the
devisee's surviving descendants. They take by representation
the property to which the devisee would have been entitled had
the devisee survived the testator.
(2) Except as provided in paragraph (4), if the devise is
in the form of a class gift, other than a devise to "issue,"
"descendants," "heirs of the body," "heirs," "next of kin,"
"relatives," or "family," or a class described by language of
similar import, a substitute gift is created in the surviving
descendants of any deceased devisee. The property to which the
devisees would have been entitled had all of them survived the
testator passes to the surviving devisees and the surviving
descendants of the deceased devisees. Each surviving devisee
takes the share to which he or she would have been entitled had
the deceased devisees survived the testator. Each deceased
devisee's surviving descendants who are substituted for the
deceased devisee take by representation the share to which the
deceased devisee would have been entitled had the deceased
devisee survived the testator. For the purposes of this
paragraph, "deceased devisee" means a class member who failed to
survive the testator and left one or more surviving descendants.
(3) For the purpose of section 524.2-601, words of
survivorship, such as in a devise to an individual "if he
survives me," or in a devise to "my children who survive me,"
are a sufficient indication of an intent contrary to the
application of this section.
(4) If the will creates an alternative devise with respect
to a devise for which a substitute gift is created by clause (1)
or (2), the substitute gift is superseded by the alternative
devise only if an expressly designated devisee of the
alternative devise is entitled to take under the will.
(c) [MORE THAN ONE SUBSTITUTE GIFT; WHICH ONE TAKES.] If,
under paragraph (b), substitute gifts are created and not
superseded with respect to more than one devise and the devises
are alternative devises, one to the other, the determination of
which of the substitute gifts takes effect is resolved as
follows:
(1) Except as provided in clause (2), the devised property
passes under the primary substitute gift.
(2) If there is a younger-generation devise, the devised
property passes under the younger-generation substitute gift and
not under the primary substitute gift.
(3) In this paragraph:
(i) "Primary devise" means the devise that would have taken
effect had all the deceased devisees of the alternative devises
who left surviving descendants survived the testator.
(ii) "Primary substitute gift" means the substitute gift
created with respect to the primary devise.
(iii) "Younger-generation devise" means a devise that (A)
is to a descendant of a devisee of the primary devise, (B) is an
alternative devise with respect to the primary devise, (C) is a
devise for which a substitute gift is created, and (D) would
have taken effect had all the deceased devisees who left
surviving descendants survived the testator except the deceased
devisee or devisees of the primary devise.
(iv) "Younger-generation substitute gift" means the
substitute gift created with respect to the younger-generation
devise.
Sec. 51. Minnesota Statutes 1992, section 524.2-604, is
amended to read:
524.2-604 [CONSTRUCTION THAT WILL PASSES ALL PROPERTY;
AFTER ACQUIRED PROPERTY FAILURE OF TESTAMENTARY PROVISION.]
A will is construed to pass all property which the testator
owns at death including property acquired after the execution of
the will.
(a) Except as provided in section 524.2-603, a devise,
other than a residuary devise, that fails for any reason becomes
a part of the residue.
(b) Except as provided in section 524.2-603, if the residue
is devised to two or more persons, the share of a residuary
devisee that fails for any reason passes to the other residuary
devisee, or to other residuary devisees in proportion to the
interest of each in the remaining part of the residue.
Sec. 52. Minnesota Statutes 1992, section 524.2-605, is
amended to read:
524.2-605 [ANTILAPSE; DECEASED DEVISEE; CLASS GIFTS
INCREASE IN SECURITIES; ACCESSIONS.]
If a devisee who is a grandparent or a lineal descendant of
a grandparent of the testator is dead at the time of execution
of the will, or fails to survive the testator, the issue of the
deceased devisee who survive the testator take in place of the
deceased devisee and if they are all of the same degree of
kinship to the devisee they take equally, but if of unequal
degree then those of more remote degree take by representation.
One who is a grandparent or a lineal descendant of a grandparent
of the testator and who would have been a devisee under a class
gift on surviving the testator is treated as a devisee for
purposes of this section whether death occurred before or after
the execution of the will.
(a) If a testator executes a will that devises securities
and the testator then owned securities that meet the description
in the will, the devise includes additional securities owned by
the testator at death to the extent the additional securities
were acquired by the testator after the will was executed as a
result of the testator's ownership of the described securities
and are securities of any of the following types:
(1) securities of the same organization acquired by reason
of action initiated by the organization or any successor,
related, or acquiring organization, excluding any acquired by
exercise of purchase options;
(2) securities of another organization acquired as a result
of a merger, consolidation, reorganization, or other
distribution by the organization or any successor, related, or
acquiring organization; or
(3) securities of the same organization acquired as a
result of a plan of reinvestment.
(b) Distributions in cash before death with respect to a
described security are not part of the devise.
Sec. 53. Minnesota Statutes 1992, section 524.2-606, is
amended to read:
524.2-606 [FAILURE OF TESTAMENTARY PROVISION NONADEMPTION
OF SPECIFIC DEVISES; UNPAID PROCEEDS OF SALE, CONDEMNATION, OR
INSURANCE; SALE BY CONSERVATOR OR GUARDIAN.]
(a) Except as provided in section 524.2-605 if a devise
other than a residuary devise fails for any reason, it becomes a
part of the residue.
(b) Except as provided in section 524.2-605 if the residue
is devised to two or more persons and the share of one of the
residuary devisees fails for any reason, that share passes to
the other residuary devisee, or to other residuary devisees in
proportion to their interests in the residue. A specific
devisee has a right to the specifically devised property in the
testator's estate at death and:
(1) any balance of the purchase price, together with any
security agreement, owing from a purchaser to the testator at
death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of
the property unpaid at death;
(3) any proceeds unpaid at death on fire or casualty
insurance on or other recovery for injury to the property; and
(4) property owned by the testator at death and acquired as
a result of foreclosure, or obtained in lieu of foreclosure, of
the security interest for a specifically devised obligation.
(b) If specifically devised property is sold or mortgaged
by a conservator or guardian, or if a condemnation award,
insurance proceeds, or recovery for injury to the property are
paid to a conservator or guardian, the specific devisee has the
right to a general pecuniary devise equal to the net sale price,
the amount of the unpaid loan, the condemnation award, the
insurance proceeds, or the recovery.
(c) The right of a specific devisee under paragraph (b) is
reduced by any right the devisee has under paragraph (a).
(d) For the purposes of the references in paragraph (b) to
a conservator or guardian, paragraph (b) does not apply if after
the sale, mortgage, condemnation, casualty, or recovery, it was
adjudicated that the testator's incapacity ceased and the
testator survived the adjudication by one year.
Sec. 54. Minnesota Statutes 1992, section 524.2-607, is
amended to read:
524.2-607 [CHANGE IN SECURITIES; ACCESSIONS; NONADEMPTION
NONEXONERATION.]
(a) If the testator intended a specific devise of certain
securities rather than the equivalent value thereof, the
specific devisee is entitled only to:
(1) as much of the devised securities as is a part of the
estate at time of the testator's death;
(2) any additional or other securities of the same entity
owned by the testator by reason of action initiated by the
entity excluding any acquired by exercise of purchase options;
(3) securities of another entity owned by the testator as a
result of a merger, consolidation, reorganization or other
similar action initiated by the entity; and
(4) any additional securities of the entity owned by the
testator as a result of a plan of reinvestment if it is a
regulated investment company.
(b) Distributions prior to death with respect to a
specifically devised security not provided for in subsection (a)
are not part of the specific devise.
A specific devise passes subject to any mortgage or
security interest existing at the date of death, without right
of exoneration, regardless of a general directive in the will to
pay debts.
Sec. 55. Minnesota Statutes 1992, section 524.2-608, is
amended to read:
524.2-608 [NONADEMPTION OF SPECIFIC DEVISES IN CERTAIN
CASES; SALE BY CONSERVATOR OR GUARDIAN; UNPAID PROCEEDS OF SALE,
CONDEMNATION OR INSURANCE EXERCISE OF POWER OF APPOINTMENT.]
(a) If specifically devised property is sold by a
conservator or guardian, or if a condemnation award or insurance
proceeds are paid to a conservator or guardian as a result of
condemnation, fire, or casualty, the specific devisee has the
right to a general pecuniary devise equal to the net sale price,
the condemnation award, or the insurance proceeds. This
subsection does not apply if subsequent to the sale,
condemnation, or casualty, it is adjudicated that the disability
of the testator has ceased and the testator survives the
adjudication by one year. The right of the specific devisee
under this subsection is reduced by any right possessed under
subsection (b).
(b) Any specific devisee has the right to the remaining
specifically devised property and:
(1) any balance of the purchase price together with any
security interest owing from a purchaser to the testator at
death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of
the property unpaid at death;
(3) any proceeds unpaid at death on fire or casualty
insurance on the property; and
(4) property owned by testator at death as a result of
foreclosure, or obtained in lieu of foreclosure, of the security
for a specifically devised obligation.
A general residuary clause in a will, or a will making
general disposition of all of the testator's property, does not
exercise a power of appointment held by the testator unless the
testator's will manifests an intention to include property
subject to the power.
Sec. 56. Minnesota Statutes 1992, section 524.2-609, is
amended to read:
524.2-609 [NONEXONERATION ADEMPTION BY SATISFACTION.]
A specific devise passes subject to any security interest
existing at the date of death, without right of exoneration,
regardless of a general directive in the will to pay debts.
(a) Property a testator gave in his or her lifetime to a
person is treated as a satisfaction of a devise in whole or in
part, only if (i) the will provides for deduction of the gift,
(ii) the testator declared in a contemporaneous writing that the
gift is in satisfaction of the devise or that its value is to be
deducted from the value of the devise, or (iii) the devisee
acknowledged in writing that the gift is in satisfaction of the
devise or that its value is to be deducted from the value of the
devise.
(b) For purposes of partial satisfaction, property given
during lifetime is valued as of the time the devisee came into
possession or enjoyment of the property or at the testator's
death, whichever occurs first.
(c) If the devisee fails to survive the testator, the gift
is treated as a full or partial satisfaction of the devise, as
appropriate, in applying sections 524.2-603 and 524.2-604,
unless the testator's contemporaneous writing provides otherwise.
Part 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
RULES OF CONSTRUCTION APPLICABLE TO WILLS
AND OTHER GOVERNING INSTRUMENTS
Sec. 57. Minnesota Statutes 1992, section 524.2-701, is
amended to read:
524.2-701 [CONTRACTS CONCERNING SUCCESSION SCOPE.]
A contract to make a will or devise, or not to revoke a
will or devise, or to die intestate, if executed after January
1, 1976, can be established only by (1) provisions of a will
stating material provisions of the contract; (2) an express
reference in a will to a contract and extrinsic evidence proving
the terms of the contract; or (3) a writing signed by the
decedent evidencing the contract. The execution of a joint will
or mutual wills does not create a presumption of a contract not
to revoke the will or wills.
In the absence of a finding of a contrary intention, the
rules of construction in this part control the construction of a
governing instrument. The rules of construction in this part
apply to a governing instrument of any type, except as the
application of a particular section is limited by its terms to a
specific type or types of provision or governing instrument.
Sec. 58. [524.2-703] [CHOICE OF LAW AS TO MEANING AND
EFFECT OF GOVERNING INSTRUMENT.]
The meaning and legal effect of a governing instrument is
determined by the local law of the state selected in the
governing instrument, unless the application of that law is
contrary to the provisions relating to the elective share
described in part 2, the provisions relating to exempt property
and allowances described in part 4, or any other public policy
of this state otherwise applicable to the disposition.
Sec. 59. [524.2-704] [POWER OF APPOINTMENT; MEANING OF
SPECIFIC REFERENCE REQUIREMENT.]
If a governing instrument creating a power of appointment
expressly requires that the power be exercised by a reference,
an express reference, or a specific reference, to the power or
its source, it is presumed that the donor's intention, in
requiring that the donee exercise the power by making reference
to the particular power or to the creating instrument, was to
prevent an inadvertent exercise of the power and an attempt to
exercise the power by a donee who had knowledge of and intended
to exercise the power is effective.
Sec. 60. [524.2-705] [CLASS GIFTS CONSTRUED TO ACCORD WITH
INTESTATE SUCCESSION.]
Adopted individuals and individuals born out of wedlock,
and their respective descendants if appropriate to the class,
are included in class gifts and other terms of relationship in
accordance with the rules for intestate succession. Terms of
relationship that do not differentiate relationships by blood
from those by affinity, such as "uncles," "aunts," "nieces," or
"nephews," are presumed to exclude relatives by affinity. Terms
of relationship that do not differentiate relationships by the
half blood from those by the whole blood, such as "brothers,"
"sisters," "nieces," or "nephews," are presumed to include both
types of relationships.
Sec. 61. [524.2-708] [CLASS GIFTS TO "DESCENDANTS,"
"ISSUE," OR "HEIRS OF THE BODY"; FORM OF DISTRIBUTION IF NONE
SPECIFIED.]
If a class gift in favor of "descendants," "issue," or
"heirs of the body" does not specify the manner in which the
property is to be distributed among the class members, the
property is distributed among the class members who are living
when the interest is to take effect in possession or enjoyment,
in such shares as they would receive, under the applicable law
of intestate succession, if the designated ancestor had then
died intestate owning the subject matter of the class gift.
Sec. 62. [524.2-709] [REPRESENTATION; PER STIRPES; PER
CAPITA AT EACH GENERATION.]
(a) [DEFINITIONS.] In this section:
(1) "Deceased child" or "deceased descendant" means a child
or a descendant who either predeceased the distribution date or
is deemed to have predeceased the distribution date under
section 524.2-702.
(2) "Distribution date," with respect to an interest, means
the time when the interest is to take effect in possession or
enjoyment. The distribution date need not occur at the
beginning or end of a calendar day, but can occur at a time
during the course of a day.
(3) "Surviving ancestor," "surviving child," or "surviving
descendant" means an ancestor, a child, or a descendant who
neither predeceased the distribution date nor is deemed to have
predeceased the distribution date under section 524.2-702.
(b) [REPRESENTATION; PER STIRPES.] If an applicable statute
or governing instrument calls for property to be distributed by
"representation" or "per stirpes," the property is divided into
as many equal shares as there are (i) surviving children of the
designated ancestor and (ii) deceased children who left
surviving descendants. Each surviving child, if any, is
allocated one share. The share of each deceased child with
surviving descendants is divided in the same manner, with
subdivision repeating at each succeeding generation until the
property is fully allocated among surviving descendants.
(c) [PER CAPITA AT EACH GENERATION.] If a governing
instrument calls for property to be distributed "per capita at
each generation," the property is divided into as many equal
shares as there are (i) surviving descendants in the generation
nearest to the designated ancestor which contains one or more
surviving descendants and (ii) deceased descendants in the same
generation who left surviving descendants, if any. Each
surviving descendant in the nearest generation is allocated one
share. The remaining shares, if any, are combined and then
divided in the same manner among the surviving descendants of
the deceased descendants as if the surviving descendants who
were allocated a share and their surviving descendants had
predeceased the distribution date.
(d) [DECEASED DESCENDANT WITH NO SURVIVING DESCENDANT
DISREGARDED.] For the purposes of paragraphs (b) and (c), an
individual who is deceased and left no surviving descendant is
disregarded, and an individual who leaves a surviving ancestor
who is a descendant of the designated ancestor is not entitled
to a share.
Sec. 63. [INSTRUCTION TO REVISOR.]
In the next and subsequent editions of Minnesota Statutes,
the revisor shall renumber each section in column A with the
corresponding number in column B and correct all
cross-references to affected sections.
Column A Column B
525.90 524.2-702
528.01 524.6-214
528.02 524.6-201
528.03 524.6-202
528.04 524.6-203
528.05 524.6-204
528.06 524.6-205
528.07 524.6-206
528.08 524.6-207
528.09 524.6-208
528.10 524.6-209
528.11 524.6-210
528.13 524.6-211
528.14 524.6-212
528.15 524.6-213
Sec. 64. [REPEALER.]
Minnesota Statutes 1992, sections 524.2-112; 524.2-201;
524.2-202; 524.2-203; 524.2-204; 524.2-205; 524.2-206;
524.2-207; 524.2-503; 524.2-610; 524.2-612; 524.3-905; 525.15;
525.151; 525.22; 525.221; and 525.223, are repealed.
Sec. 65. [EFFECTIVE DATE; PROVISIONS FOR TRANSITION.]
(a) This act takes effect on January 1, 1996.
(b) Except as provided elsewhere in this act:
(1) this act applies to the rights of successors of
decedents dying on or after its effective date and to any wills
of decedents dying on or after its effective date;
(2) if, before the effective date of this act, a right is
either acquired, extinguished, waived, or barred upon the
expiration of a prescribed period of time which commenced to run
by the provisions of any statute before the effective date, the
provisions of this act neither revoke, revive, restore, nor
remove the bar of such right; and
(3) any rule of construction or presumption provided in
this act applies to instruments executed and multiple party
accounts opened before the effective date of this act unless
there is a clear indication of contrary intent.
Presented to the governor April 18, 1994
Signed by the governor April 20, 1994, 1:40 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes