Spousal elective share
The elective share is a Minnesota surviving spouse's right to take a percentage of the augmented estate rather than accept whatever the will provides.
It exists so that a spouse cannot be disinherited.
The sliding scale#
The percentage is determined by how long the couple were married, under a statutory schedule in Minn. Stat. 524.2-202.
It runs from a low single-figure percentage for a very short marriage up to half the augmented estate for a long one.
The reasoning is that a long marriage represents a shared economic partnership, while a marriage of months does not — and the statute grades the entitlement accordingly.
The augmented estate#
The pool the percentage is applied to, and it is deliberately broad.
It includes the decedent's net probate estate, their non-probate transfers to others, their non-probate transfers to the surviving spouse, and the surviving spouse's own property.
That breadth is the point. Without it, an elective share could be defeated simply by moving assets out of probate — into joint accounts, beneficiary designations or lifetime transfers. The augmented estate reaches those.
Note that the homestead is separately addressed by 524.2-402 and is excluded from the augmented estate computation.
Homestead and allowances are additional#
Stated expressly, and regularly misunderstood.
Where the right of election is exercised, the surviving spouse's homestead rights under 524.2-402 and the allowances under 524.2-403 and 524.2-404 are not charged against the elective share. They are in addition to it.
So a spouse electing does not give up the homestead protection. They receive both.
The deadline#
Nine months after the date of death.
For property subject to probate, the election may be made within six months after the will is probated, even where that falls outside the nine months.
The right is personal to the surviving spouse. It is a decision to be made with advice, on real numbers, and inside a window that does not extend.
Why it matters in property terms#
Because it can change who ends up owning real estate.
An estate whose main asset is a house, with a will leaving it to children from a first marriage, and a surviving spouse who elects, produces a claim against the augmented estate that the house may have to satisfy.
Combined with the homestead descent rule — which already gives that spouse a life estate regardless of the will — the outcome can be very far from what the testator intended and what the family expected.
Second marriages with children from a first are where this arises most often, and they are precisely the situations where planning during life, rather than a will alone, does the work.