Can I disinherit my spouse?

It’s a question that estate planning lawyers do not like to hear. “Can I disinherit my spouse?” Whether it is said in jest (hopefully!!) or as a serious question, the answer is the same. No! It may surprise you to hear that in Minnesota, surviving spouses cannot be cut out of their deceased spouse’s estate, but it could be that the amount of money they are entitled to depends upon the length of the marriage.

All surviving spouses are entitled to the following:

1) Homestead

The surviving spouse is entitled to certain interests in the decedent’s homestead, and the interest depends upon whether or not the decedent had children.

  • If the decedent did not have children, the surviving spouse will take the decedent’s interest in the homestead
  • If the decedent had children, the surviving spouse is entitled to a life estate in the homestead. He or she can live in the homestead for the rest of his or her life, and upon the death of the surviving spouse, the decedent’s children become the owners of the property

2) Family Allowance

The surviving spouse is entitled, for either one year or eighteen months (depending on whether the estate is solvent or insolvent) to a family allowance of up to $1,500 per month.

3) Exempt Personal Property

The surviving spouse is also entitled to household and personal effects up to a value of $10,000 and one automobile.

With regard to the rest of the estate, what is commonly termed the “residue”, how much the surviving spouse is entitled to depends on:

  • Whether or not the first spouse – the decedent – had a will AND
  • Whether or not the decedent or the surviving spouse have children

Decedent dies with a will – testate

If the first spouse died with a will – known as “testate” – the spouse will be entitled to whatever the decedent laid out in the will. If the surviving spouse feels that he or she has not received a “fair share” then he or she can choose to “elect against the will”. This means that the spouse takes an “elective share” of the decedent’s estate, and his or her share of the estate depends upon the length of the marriage. The following table shows the surviving spouse’s share:

Length of marriage in years Percentage of the estate that goes to the surviving spouse

Length of marriage in yearsPercentage of the estate that goes to the surviving spouse
Less than one yearSupplemental amount
One year but less than 23%
Two years but less than 36%
Three years but less than 49%
Four years but less than 512%
Five years but less than 615%
Six years but less than 718%
Seven years but less than 821%
Eight years but less than 924%
Nine years but less than 1027%
Ten years but less than 1130%
Eleven years but less than 1234%
Twelve years but less than 1338%
Thirteen years but less than 1442%
Fourteen years but less than 1546%
Fifteen years or more50%

Decedent dies without a will – intestate

If the decedent dies without a will – known as “intestate” – Minnesota laws lays out the rights of a surviving spouse. How much a spouse will get depends on whether or not the decedent or the spouse had children.

If the decedent did not have children, the surviving spouse is entitled to the entire intestate estate.

If the decedent had children, all of whom were also the surviving spouse’s children, and the surviving spouse had no other children, the surviving spouse is entitled to the entire intestate estate.

If either the decedent or the surviving spouse had children from a different relationship, the surviving spouse is entitled to:

  1. The first $150,000 of the decedent’s intestate estate
  2. One half (1/2) of the balance of the intestate estate

What is the “intestate estate”?

The intestate estate is the total of any property owned by the decedent, with the exception of the following:

  • Assets subject to the surviving spouse’s additional statutory rights to the homestead, family allowance and personal property (see above for a more detailed description)
  • Assets that are to be distributed per the terms of the decedent’s will

The only way that you can disinherit a spouse is to divorce him or her. Interestingly, although you cannot disinherit a spouse through your estate plan, you certainly can disinherit your children.

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