Most estate planning in Minnesota is built around a single move: put the assets in a revocable trust, name beneficiaries on everything else, and the estate never sees a probate court. That move works against delay and against the public record. It does not work against a spouse.
Minnesota’s elective share is not computed against the probate estate. It is computed against an “augmented estate” drafted specifically to sweep in the nonprobate transfers people use to route around probate — the revocable trust, the payable-on-death account, the beneficiary-designated retirement plan, the joint tenancy. The will is almost beside the point.
The other half of the rule is what actually decides cases. The elective share is a right of election. Nobody exercises it for the surviving spouse, and the part of it that reaches those nonprobate transfers runs on a clock that starts at death — not when the will is probated, and not when the spouse finally learns what was in the trust.
Can you disinherit a spouse in Minnesota?
No. Minn. Stat. § 524.2-202(a) gives the surviving spouse of a decedent who dies domiciled in Minnesota a right of election “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.”
That schedule is a one-dimensional table in the statute: marriage-length bands in one-year increments, each paired with a percentage of the augmented estate. Read it in the statute rather than from any secondary source — including this one. Its two endpoints give the shape of it. At the short end, a marriage of “[l]ess than one year” yields a “[s]upplemental amount only.” At the long end, a marriage of “15 years or more” yields “50 percent of the augmented estate.” Everything between steps upward, and the step size is not uniform across the range. If you are near a band boundary, the boundary is worth money, and the statute is the only place to check which side of it you are on.
There is also a floor. Under § 524.2-202(b), if the amounts credited to the spouse under §§ 524.2-207 and 524.2-209 and the portion of the elective share payable from the probate estate and nonprobate transfers together come to “less than $75,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $75,000, minus the sum of the amounts described in those sections.” That is why a marriage under a year produces a “supplemental amount only” — the percentage is zero, but the floor is not.
And the elective share is not a substitute for the other statutory rights. Section 524.2-202(c) says that if the election is made, the spouse’s homestead rights and the allowances under §§ 524.2-402, 524.2-403, and 524.2-404 “are not charged against but are in addition to the elective-share and supplemental elective-share amounts.”
Does a revocable trust defeat the elective share?
It does not, and the statute is unusually direct about why.
Section 524.2-203 defines the augmented estate as the sum of four things: 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 own property and nonprobate transfers to others.
The second component is where the trust lands. Section 524.2-205(1) reaches “[p]roperty owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent’s death,” and the first category it lists is:
(i) Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment.
Section 524.2-201(6) then defines that phrase for this part of the code:
“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.
A settlor who can revoke the trust and take the property back holds a power to create a present interest in themselves. That is the definition, written to capture exactly this arrangement. The same subdivision does the same work on the rest of the nonprobate toolkit: § 524.2-205(1)(ii) reaches survivorship interests, (1)(iii) life insurance the decedent owned immediately before death, (1)(iv) annuity contracts under which the decedent was the primary annuitant, and (1)(v) amounts under “any public or private pension, disability compensation, benefit, or retirement plan or account, excluding the federal Social Security system.” Section 524.2-201(8) adds that “[p]roperty” here “includes values subject to a beneficiary designation.”
Deathbed giving does not work either. Section 524.2-205(3)(iii) pulls back transfers made during marriage in the two years before death “to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.”
If a plan depends on the revocable trust holding the line, read that alongside what the trust does against other claimants — see Minnesota creditor claims against a revocable trust and the unfunded revocable trust. A transfer-on-death deed gets the same analysis: it is a nonprobate transfer, and nonprobate transfers are what § 524.2-205 was written to catch.
The surprise: the spouse’s own property goes into the calculation
The fourth component catches people who assume the elective share is a one-way ratchet. Section 524.2-207(a) includes in the augmented estate the value of property, other than the homestead, “that was owned by the surviving spouse at the decedent’s death,” plus property that would have counted as the spouse’s nonprobate transfers to others had the spouse been the decedent.
Section 524.2-209(a)(3) then applies that property first, “up to the applicable percentage thereof” — defined as “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.”
A surviving spouse who already holds substantial assets in their own name may therefore have an elective share that is largely or entirely self-satisfied on paper. The election is an arithmetic exercise before it is a legal one, and the arithmetic frequently comes out the other way from the client’s expectation.
Section 524.2-208(a) supplies the two exclusions that matter most for planners: property is out of the decedent’s nonprobate transfers to others to the extent the decedent “received adequate and full consideration in money or money’s worth for a transfer of the property,” or “if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse.” Written spousal consent, obtained at the time of the transfer, is the clean answer.
How long does a surviving spouse have to elect?
This is the deadline that ends most of these claims, and it must be read verbatim. Minn. Stat. § 524.2-211(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 same paragraph carries a second, quieter deadline that does the real damage:
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.
Read those two sentences together. A spouse who files at month eleven — comfortably inside the six-months-after-probate branch — may still have an elective share computed against a probate estate that was deliberately emptied. The augmented estate disappears at nine months from death unless something is done about it.
That something is § 524.2-211(b). Within nine months after death, the spouse may petition for an extension of time to elect; if the spouse also gives notice of that petition to all persons interested in the decedent’s nonprobate transfers to others within the same nine months, “the court for cause shown by the surviving spouse may extend the time for election,” and the nonprobate transfers stay in the augmented estate.
The homestead election in § 524.2-211(f) runs on parallel tracks: where 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”; where it is subject to other disposition, “the filing must be within nine months after the date of death.” That filing matters independently, because § 524.2-402(d) deems a surviving spouse to have consented to a disposition of the homestead unless the spouse files it.
None of these is the four-month creditor claim period in probate, and none is the estate tax clock discussed in Minnesota’s estate tax trap. A surviving spouse is running several independent deadlines at once, and only one of them is forgiving.
Who can exercise the right, and can it be given away in advance?
The right is personal. Section 524.2-212 provides that it “may be exercised only during the surviving spouse’s lifetime.” A spouse who dies inside the nine-month window without having filed leaves nothing for the spouse’s own estate to pursue. For a protected person, the right may be exercised only by order of the court where the protective proceeding is pending, and only after two findings: that the exercise “is necessary to provide adequate support for the protected person during the protected person’s probable life expectancy,” and that it “will be consistent with the best interests of the natural bounty of the protected person’s affection.”
It can be waived, with a drafting distinction that has swallowed a lot of boilerplate. Under § 524.2-213, the elective share and the rights to homestead, exempt property, and family allowance “may be waived, wholly or partially, after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.” But the same section says: “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.” An all-rights waiver does not reach the homestead or the allowances. And “[a]ny waiver prior to marriage must be made pursuant to section 519.11” — the antenuptial-agreement statute, which separately lets the parties “determine the rights that each party has in the estate of the other as otherwise conferred upon them by chapter 524.” Minn. Stat. § 519.11, subd. 1(b)(3).
What the spouse gets even without electing
The elective share is one of several spousal rights, and they are not interchangeable. The distinctions decide whether an election is worth making.
| Right | Source | What triggers it | What it reaches |
|---|---|---|---|
| Elective share | § 524.2-202 | Affirmative petition within the § 524.2-211 window | Percentage of the augmented estate, including nonprobate transfers |
| Premarital-will share | § 524.2-301 | Testator married after making the will, subject to four exceptions | Value of the intestate share, out of the will’s devises |
| Homestead | § 524.2-402 | Descends by operation of law; petition needed to defeat a disposition the spouse did not consent to | The homestead, free of dispositions not consented to in writing |
| Exempt property | § 524.2-403 | By statute, in addition to homestead and allowance | Household goods and personal effects not exceeding $15,000, plus one automobile without regard to value |
| Family allowance | § 524.2-404 | By statute; personal representative may set the amount | A reasonable allowance, capped by the personal representative at $2,300 per month, for one year if the estate is inadequate to discharge allowed claims or 18 months if it is adequate |
Section 524.2-301 is the one most often confused with the elective share. It applies only where “a testator married after making a will and the spouse survives the testator,” and gives the spouse an intestate-share equivalent — subject to four exceptions, including a prenuptial or postnuptial agreement and a will or other written evidence disclosing an intention not to provide for the spouse. It is a different remedy on a different trigger, and it does not carry the augmented estate with it.
Who actually pays, and how a trustee gets pulled in
An elective-share proceeding is not confined to the probate estate. Section 524.2-209 sets the order in which assets are applied, and § 524.2-210(a) makes “[o]nly original recipients of the decedent’s nonprobate transfers to others, and the donees of the recipients … to the extent the donees have the property or its proceeds,” personally liable to make a proportional contribution. Section 524.2-211(d) authorizes the court to fix the liability of any person holding property included in the augmented estate “whether as trustee or otherwise,” even where it never reached the personal representative.
The practical lever is § 524.2-214. A payor who transfers a beneficiary-designated asset in good faith before receiving notice is protected, but a payor “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.” That notice “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.” Sending it early — to the trustee, the insurer, the plan administrator, the bank — is often the most valuable move of the first month.
Madgett Law, LLC
Madgett Law, LLC advises surviving spouses and personal representatives on elective-share elections, augmented-estate valuation, and the § 524.2-211 filing sequence, and represents trustees and beneficiaries defending contribution claims under §§ 524.2-209 and 524.2-210. On the planning side, the firm drafts spousal consents under § 524.2-208 and agreements under §§ 519.11 and 524.2-213 so that a plan built on a revocable trust actually holds. If a spouse has died and you do not yet know what the trust holds, the nine-month clock is already running — Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 524.2-202(a) (right of election; elective-share percentage of augmented estate determined by length of marriage; schedule endpoints), (b) ($75,000 supplemental elective-share amount), (c) (homestead and allowances in addition to, not charged against, the elective share); § 524.2-201(6) (definition of “presently exercisable general power of appointment”), (8) (“property” includes values subject to a beneficiary designation); § 524.2-203 (four components of the augmented estate); § 524.2-205(1)(i)–(v) (nonprobate transfers to others: powers of appointment, survivorship interests, life insurance, annuities, pension and retirement accounts), (3)(iii) (two-year lookback; transfers to one donee exceeding $10,000); § 524.2-207(a) (surviving spouse’s own property included); § 524.2-208(a) (exclusions for adequate consideration and written spousal consent); § 524.2-209(a)(3) (spouse’s property applied first; “applicable percentage” is twice the schedule percentage); § 524.2-210(a) (personal liability of recipients and donees); § 524.2-211(a) (nine months after death or six months after probate of the will, whichever later expires; nonprobate transfers excluded if filed more than nine months after death), (b) (extension petition within nine months), (d) (liability of a person holding property “whether as trustee or otherwise”), (f) (homestead election deadlines); § 524.2-212 (right personal to the surviving spouse; protected-person findings); § 524.2-213 (waiver after marriage; “all rights” waives only the elective share; prior to marriage under § 519.11); § 524.2-214(a)–(b) (payor protection and the written-notice mechanism); § 524.2-301(a) (premarital will; entitlement of spouse and the four exceptions); § 524.2-402(a), (d) (descent of homestead; deemed consent absent a petition); § 524.2-403(a) ($15,000 in household goods and personal effects; one automobile); § 524.2-404(a)–(b) (family allowance duration and $2,300 monthly cap); § 519.11, subd. 1(b)(3)–(4) (antenuptial agreement may determine chapter 524 estate rights). All statutory text verified against revisor.mn.gov, 2025 edition; no pending-amendment notice appeared on any section cited. This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no particular outcome is promised or implied.