Minnesota has two statutes that write a share into a will for a family member the will does not mention. They are drafted very differently, and the difference matters: the spouse statute keys on the marriage postdating the will, and the child statute keys on the child postdating the will. A child who was alive when the will was signed and left out gets nothing from either.
The premarital will: the spouse gets an intestate share
Minn. Stat. § 524.2-301(a):
If a testator married after making a will and the spouse survives the testator, the surviving spouse shall receive a share of the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1) provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) the will or other written evidence discloses an intention not to make provision for the spouse;
(3) the person, who was the surviving spouse at death, was designated as a devisee, or is the beneficiary of a trust referenced, in the will; or
(4) 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 written statements or may be reasonably inferred from the amount of the transfer or other evidence.
Note what the entitlement is: the intestate share under § 524.2-102, not a fixed fraction. In a blended family that share is “the first $225,000, plus one-half of any balance of the intestate estate” — and where all the decedent’s descendants are also the spouse’s and the spouse has no outside descendants, it is the whole estate. The statute is capable of overriding a will completely.
Each of the four exceptions is broader than it first appears.
Exception (3) is the one that decides cases. It does not require that the will provide for the person as a spouse, or provide adequately, or provide at all in any meaningful amount. It asks whether “the person, who was the surviving spouse at death, was designated as a devisee, or is the beneficiary of a trust referenced, in the will.” A will signed during a long engagement that leaves the fiancée $5,000 under her maiden name defeats the entire § 524.2-301 claim. So does naming her as a beneficiary of a trust the will references — even if the will itself says nothing about her.
Exception (2) does not require the will to say it. “The will or other written evidence discloses an intention not to make provision for the spouse.” Correspondence, a signed estate-planning memorandum, or a lawyer’s engagement notes signed by the testator can satisfy it.
Exception (4) does not require the transfer to be documented as a substitute. The intent that a lifetime transfer be in lieu of a testamentary provision may be “reasonably inferred from the amount of the transfer or other evidence.” A large beneficiary designation in the spouse’s favor is often enough on its own.
Exception (1) is the planning answer. A prenuptial or postnuptial agreement forecloses the claim outright.
Where the claim does succeed, paragraph (b) protects one class of devisees from bearing the cost:
In satisfying the share provided by this section, devises made by the will 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 first as otherwise provided in section 524.3-902.
That is a deliberate protection for the testator’s children from an earlier relationship. Everything else abates first — under § 524.3-902(a), in the order of property not disposed of by the will, then residuary devises, then general devises, then specific devises, proportionally within each class — and the pre-marriage children’s devises are reached only after the rest of the will is exhausted.
The premarital will and the house
Section 524.2-402(d) contains a cross-reference that is easy to miss. The general rule is that a surviving spouse is deemed to consent to a testamentary disposition of the homestead unless the spouse files a petition within the § 524.2-211(f) window — but that rule applies “except as provided in section 524.2-301.”
Read the carve-out narrowly, because it is written narrowly. It is not “except where the spouse married after the will”; it is “except as provided in section 524.2-301” — so it yields only to what § 524.2-301 actually provides, and that section provides nothing at all where any of its four exceptions applies. A spouse who was named as a devisee in the premarital will has no § 524.2-301 entitlement, and so has nothing for the carve-out to preserve.
Whether the carve-out excuses the § 524.2-211(f) filing altogether or merely affects what the spouse ultimately takes is not resolved on the face of the statute, and we are aware of no Minnesota appellate decision construing it. The safe course for a surviving spouse is to file within the § 524.2-211(f) window and argue the carve-out in the alternative — the filing costs little and the deemed-consent rule in § 524.2-402(d) is unforgiving. On the general framework, see what comes off the top of a Minnesota estate.
Section 524.2-301 versus the elective share
A surviving spouse may have both theories available and they operate very differently.
| Premarital will, § 524.2-301 | Elective share, § 524.2-202 | |
|---|---|---|
| Trigger | Testator married after making the will | Any surviving spouse |
| Measure | The full intestate share | A percentage of the augmented estate, scaled by length of marriage (3% at one year rising to 50% at 15 years), subject to the § 524.2-202(b) supplemental amount of $75,000 |
| Defeated by | Naming the spouse as a devisee, an outside transfer, a prenuptial or postnuptial agreement, or written evidence of intent | A valid waiver |
| Reaches nonprobate assets? | No — it is a share “of the estate of the testator” | Yes — the augmented estate is broad |
| Homestead deemed consent | Not applicable, per § 524.2-402(d) | Applicable |
Where the estate is mostly probate assets and the marriage was short, § 524.2-301 is usually the stronger claim, because the elective share percentage scales with the length of the marriage. Where the wealth sits in nonprobate assets, the elective share is the only theory that reaches it. The two are not mutually exclusive, and they run on different clocks: the elective share must be elected within the § 524.2-211(a) window — the later of nine months after death or six months after probate of the will, extendable under paragraph (b) — while § 524.2-301 carries no statutory deadline of its own. What it does carry is the § 524.2-211(f) homestead filing, which is on the elective-share clock. Evaluate both early regardless.
The omitted child: only children born or adopted after the will
Section 524.2-302(a) opens with a limitation that disposes of most inquiries:
Except as provided in paragraph (b), if a testator’s will fails to provide for any of the testator’s children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate …
A child who was alive when the will was signed and was left out is not an omitted child. Minnesota permits disinheritance of a living child, and the statute does not reach it. The only exception is paragraph (c), discussed below.
For a child who does qualify, the size of the share depends on whether the testator had other children when the will was signed.
No children living when the will was executed — paragraph (a)(1). The omitted 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.”
That exception is the common case and it is why the statute rarely fires for a first child: a will leaving everything to the spouse, who is the child’s other parent and who survives, defeats the claim entirely. The theory is that the child is provided for through the surviving parent.
Children living when the will was executed, and the will devised to one or more of them — paragraph (a)(2). The after-born child does not get an intestate share. The statute confines the claim to a slice of what the earlier children got:
(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 item (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.
So if the will left a third of the estate divided among two children and the rest to a spouse or a charity, a third after-born child takes a third of that third — not a third of the estate, and nothing from the spouse’s or the charity’s share. Item (iii) means that where the earlier children took contingent interests in a trust, the after-born child takes a contingent interest in the trust too, not cash.
Note the trigger in paragraph (a)(2): it applies where the will “devised property or an interest in property to one or more of the then-living children.” A will that had living children at execution and devised nothing to any of them does not fit paragraph (a)(2) — and does not fit paragraph (a)(1) either, which requires that the testator had no child living when the will was executed.
The two exceptions — paragraph (b). By its own terms paragraph (b) switches off “paragraph (a), clause (1) or (2), [and] paragraph (c)” alike — so it defeats the believed-dead claim below as well as the ordinary after-born claim. Neither applies if “it appears from the will that the omission was intentional,” or if 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 the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.” Note that the outside-transfer exception here refers to the testator’s “statements,” not the testator’s written statements as in § 524.2-301(a)(4) — the child statute is easier to defeat on this ground.
The believed-dead child — paragraph (c). This is the single situation in which a child living at execution is protected: “If at the time of execution of the will the testator fails to provide in the will for a living child solely because the testator believes the child to be dead,” that child takes an intestate share — subject to the same exception for a will that devised “all or substantially all of the estate to the other parent of the child.”
A deceased omitted child’s issue — paragraph (d). If an omitted child predeceased the testator leaving surviving issue, “the issue who represent the deceased omitted child are entitled to take the deceased omitted child’s share.”
One trap for the intentionally disinherited child
Disinheriting a child in the will has a second consequence people do not expect. Section 524.2-403(b) gives the exempt property selection to the decedent’s children jointly where there is no surviving spouse — “except that where it appears from the decedent’s will a child was omitted intentionally, the child is not entitled to the rights conferred by this section.”
So an intentional disinheritance forfeits the $15,000 selection and the automobile as well as the devise. That is generally the drafter’s intent, but it should be a deliberate choice rather than a side effect.
Drafting notes
- Re-execute after a marriage. Section 524.2-301 exists because people do not, and it produces results no one chose. A new will after the wedding removes the question entirely.
- If you intend the pre-marriage will to control, say so in it, and get a prenuptial or postnuptial agreement. Exceptions (1) and (2) are the clean answers; relying on exceptions (3) and (4) means litigating over inference.
- Use a class gift to children, not a list of names. “My children” reaches after-born and after-adopted children automatically and takes § 524.2-302 out of the picture. A named list is what creates omitted children.
- If you are disinheriting a living child, say it is intentional, in the will. Paragraph (b)(1) requires that it “appears from the will,” and it also drives the § 524.2-403(b) forfeiture.
- Check the fiduciary nominations too. A marriage is not the only event that scrambles a will by operation of law — a dissolution now revokes designations to the former spouse’s family as well.
- Watch the deadlines. The homestead election under § 524.2-211(f) runs nine months from death, or six months from probate of the will, whichever last expires, and a will contest on other grounds has its own clock under § 524.3-108(3).
Madgett Law, LLC
We bring and defend Minnesota omitted-spouse and omitted-child claims — evaluating whether a premarital will was defeated by a stray devise or an inferred lifetime transfer, computing what an after-born child’s limited share actually amounts to under § 524.2-302(a)(2), and drafting the prenuptial and postnuptial agreements and class gifts that keep these statutes from firing at all. If a Minnesota will predates your marriage or your child’s birth, call 612-470-6529 or send us a message.
Sources: Minn. Stat. § 524.2-301 — para. (a) (surviving spouse of a testator who married after making the will receives a share equal in value to the intestate share), para. (a)(1)–(4) (exceptions: prenuptial or postnuptial provision or waiver; the will or other written evidence disclosing an intention not to provide; designation as a devisee or as beneficiary of a trust referenced in the will; a lifetime transfer shown by the testator’s written statements or reasonably inferred from the amount or other evidence), para. (b) (abatement, excepting devises to a child of the testator born before the marriage who is not a child of the surviving spouse, and devises or substitute gifts under §§ 524.2-603 or 524.2-604 to such a child’s descendant). Minn. Stat. § 524.2-302 — para. (a) opening (limitation to children born or adopted after execution of the will), para. (a)(1) (intestate share where no child was living at execution, unless all or substantially all was devised to the other parent who survives and takes), para. (a)(2)(i)–(iv) (limitation to devises made to then-living children; equal-share computation; same character of interest; ratable abatement preserving the character of the testamentary plan), para. (b)(1)–(2) (intentional omission appearing from the will; provision by transfer outside the will shown by the testator’s statements or reasonably inferred), para. (c) (child the testator believed to be dead), para. (d) (issue of a deceased omitted child), para. (e) (abatement under § 524.3-902). Minn. Stat. § 524.2-102 (intestate share of the surviving spouse, including the first $225,000 plus one-half of the balance in the blended-family situations). Minn. Stat. § 524.2-402(d) (surviving spouse deemed to consent to a disposition of the homestead absent a § 524.2-211(f) petition, “except as provided in section 524.2-301”). Minn. Stat. § 524.2-211(f)(1)–(2) (nine months after death, or six months after probate of the will, whichever last expires; nine months otherwise). Minn. Stat. § 524.2-403(b) (children take the exempt property selection where there is no surviving spouse, except a child intentionally omitted as it appears from the will). Minn. Stat. § 524.3-902 — para. (a) (order of abatement: property not disposed of by the will; residuary devises; general devises; specific devises; proportional abatement within each classification), para. (b) (contrary order where the will expresses one or where the testamentary plan or purpose of the devise would be defeated). Minn. Stat. § 524.3-108(3) (contest of an informally probated will within the later of 12 months from the informal probate or three years from death). Statutory text retrieved from the Minnesota Office of the Revisor of Statutes (2025 edition); no pending-amendment banner appeared on any section cited. No case law is cited in this article. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Whether an exception applies, and what an omitted share is worth, depend on the will’s terms and the estate’s composition. No outcome is promised or implied.