If you’re considering remarriage later in life, it’s essential to have a plan for what happens to your property – especially your home – if you pass away.
In Minnesota, like in many states, your new spouse and your children could find themselves in a legal battle over your estate unless you’ve clearly outlined your wishes.
Your spouse would have a right to their “elective share”
Minnesota law protects surviving spouses through the elective share, which allows them to claim a percentage of your estate, even if you attempt to disinherit them. The elective share is based on the length of your marriage:
- If you’ve been married less than one year, your spouse is only entitled to what is called a “supplemental amount.” If their standard elective share of your estate is less than $75,000, your spouse would be eligible for a supplemental amount that would raise it to that amount.
- If you’ve been married more than a year but less than two years, your spouse can claim 3% of your estate.
- For each additional year of marriage, the percentage increases, up to a maximum of 50% after 15 years of marriage.
This means that even if your will leaves your house entirely to your children, your spouse could still claim part of its value under the elective share law. That could force the sale of your home if your children cannot afford to buy out your spouse’s elective share of the estate.
How to protect your children’s inheritance
To avoid a pitched battle between your new spouse and your children in the event of your untimely death, there are a few ways to approach the situation. Your Last Will and Testament is a start, and listing the kids as direct beneficiaries on your IRAs, 401ks, bank accounts and insurance policies can also help.
Where the home is concerned, you may consider protecting your children through a prenuptial agreement and moving the home into a trust so that it bypasses probate entirely. Discussing this particular concern with a professional is the best way to make sure that your children’s legal interests are fully protected – even after you are gone.