A married couple, of which each spouse has children from previous relationships, faces certain issues with regard to distribution of their estates. The most basic of these issues involves what happens if a spouse dies without a will. When any individual dies without a will, the statutory rules for the intestate succession dictate the distribution of the deceased person’s probate property [1] upon death. This is a basic primer for how the Minnesota Intestacy Statute is applied when a spouse who has children from a previous relationship dies without a will.
First, the surviving spouse receives a life estate in the homestead [2] with the remainder interest passing to the deceased spouse’s descendants by right of representation. If the homestead is titled jointly with the surviving spouse, then title to the homestead passes to the surviving spouse. The surviving spouse is also entitled to (1) a family allowance (described by Jen Santini here), (2) $10,000 of personal property (see exempt property also in Jen’s article), and (3) one car regardless of value.
In addition to the above distributions, the surviving spouse receives $150,000 plus one half of the remaining assets in the probate estate. The other half passes to the deceased spouse’s descendants by right of representation.
Blended families face numerous additional estate planning issues involving incapacity planning and the distribution of assets upon death. All married couples with children from previous relationships should seek the advice of an attorney to ensure that their estate plan properly reflects their intentions.
[1] Probate property is comprised of assets titled in the deceased person’s name as sole owner and without (1) a beneficiary designation or (2) other non-probate transfer on death designation for such assets. For example, an account with a beneficiary designation will not be subject to the intestacy statute described above and will pass to the designated beneficiary on file with the account. Joint property passes to the surviving joint owner. Read more about titling real estate here.
[2] If both spouses own the homestead in joint tenancy, then it is not a probate asset and it passes directly to the surviving spouse.
If you wish to read the actual statutes, see MN Statutes 524.2-101, 524.2-402, 524.2-403, and 524.2-404
