The loss of a spouse is an emotionally difficult time that can be made more challenging by the practical and legal responsibilities associated with the probate process. Probate ensures the deceased spouse’s estate is handled properly, but it can be time-consuming and sometimes restrictive for a surviving spouse who may require immediate access to estate assets. For surviving spouses, understanding their rights to the homestead, exempt property, and family allowance is essential to ensure financial stability and access to resources during probate.
Homestead
In Minnesota, if a deceased spouse has arranged for the disposition of the homestead, whether through their will or through other means, and the surviving spouse has not consented to such disposition, the surviving spouse may assert their rights to the homestead. These rights allow the surviving spouse to continue living in the family home regardless of the provisions in the deceased spouse’s will. This protects the surviving spouse from eviction or the forced sale of the residence.
Minn. Stat. § 524.2-402 outlines the scope of the surviving spouse’s rights to the homestead. If the deceased spouse does not have surviving descendants, then the surviving spouse receives the homestead. However, if the deceased spouse has surviving descendants, then the surviving spouse receives the homestead for their lifetime and after their death it passes to the deceased spouse’s surviving descendants in equal shares.
To exercise their rights to the homestead, a surviving spouse must not have consented to an alternative disposition of the homestead and must file a petition asserting their homestead rights with the relevant court.
Example: William and Elizabeth were married and lived in a family home for 30 years. After William’s death, Elizabeth discovers his will specified the home was to be given to his children from a previous marriage. Since Elizabeth did not consent to this arrangement, she could file a petition asserting her homestead rights to continue living in the family home for the rest of her life. After Elizabeth’s death, the home would pass to William’s children.
Exempt Property
The surviving spouse also has the right to claim one vehicle, regardless of value, and up to $15,000 of exempt property from their deceased spouse’s estate. Minn. Stat. § 524.2-403 permits the surviving spouse to choose their exempt property from household furniture, appliances, and personal effects. If the exempt property has a value of less than $15,000 or there is not $15,000 of exempt property, the surviving spouse is entitled to other personal property of the estate to make up the $15,000 value. Generally, the surviving spouse may choose freely from the deceased spouse’s personal property; however, if there is sufficient personal property in the estate to satisfy the surviving spouse’s right to exempt property, they may not choose property that has been specifically gifted to another person in the deceased spouse’s will.
Example: Charlotte passed away leaving behind a vehicle worth $10,000 and personal effects qualifying as exempt property valued at $12,000. Charlotte’s husband, James, could claim the car as well as the personal effects under his exempt property rights. Since the estate did not contain enough exempt property, James could also claim $3,000 worth of other personal property from Charlotte’s estate to make up the difference.
Family Allowance
In addition to their right to the homestead and exempt property, the surviving spouse also has the right to claim a reasonable family allowance from the estate for their maintenance under Minn. Stat. § 524.2-404. This allowance is received monthly during the probate and can continue for up to 12 months if the estate is insufficient to satisfy creditors’ claims made against the estate or for up to 18 months if the estate is sufficient to satisfy the creditors’ claims.
The amount of the monthly family allowance is determined by the personal representative of the deceased spouse’s estate, but should be a reasonable amount that does not exceed $2,300 per month. While the statute does not define “reasonable” and courts typically give the personal representative a fair degree of discretion, the courts have stated that the amount of the family allowance should be based on need and the facts of each individual case. As further guidance, the courts have provided a list of factors that should be considered when setting the family allowance. Those factors are:
- The value of the deceased spouse’s estate;
- The surviving spouse’s previous standard of living; and
- The nature of other resources available to the surviving spouse to meet their current living expenses, such as life insurance proceeds.
Example: John dies, leaving behind his wife, Sarah, who has relied on John’s income to pay the household expenses. John left an estate worth $150,000 and had no significant debts. There are no other resources immediately available to Sarah for her living expenses. Sarah could request a family allowance of $2,300 per month for 18 months or the duration of the probate, whichever is shorter.
Conclusion
It is essential that surviving spouses understand their legal rights to use estate assets during the probate process. Surviving spouses can take proactive steps to protect their rights, including consulting an experienced attorney who can provide guidance and advocate on their behalf.
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This article is for informational purposes only and is subject to our disclaimer.
