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Alexa

2nd Marriage, no Will, 2 children 16 and 19

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My husband and I have been married for 23 years, have 2 children ages 16 and 19 and he has two children and grandchildren from a previous married ages 34 and 38. He has owned his own real estate business for 30 years and together we have joint ownership in some of of his properties but most of his property is sole ownership. He has had several medical issues and currently we do not have a Will. If something were to happen to him and we do not have a Will, what would happen to our assets. Also, if he decides to put a Will together, I have requested to be involved but he has made it clear that all decisions will be made by him. Does he have that right? I want to make sure that my children and I are provided for if something were to happen to him and that the step children are not entitled to claiming some of our assets. I have been employed for 38 years and have contributed financially to the marriage from medical bills, house payments and purchasing assets. By Minnesota State Law, what am I entitled to if he were to pass with no Will. Since my husband seems to want to be in charge of his Will, should I meet with an attorney to ensure my 401k, pension and retirement accounts go to my children?

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here is a chart that describes what property goes to whom in Minnesota when you die without a will:

 

Who Gets What in Minnesota?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:

If you die with: here’s what happens:
  • children but no spouse
  • children inherit everything
  • spouse but no descendants
  • spouse inherits everything
  • spouse and descendants from you and that spouse, and the spouse has no other descendants
  • spouse inherits everything
  • spouse and descendants from you and that spouse, and the spouse has descendants from another relationship
  • spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance
  • descendants inherit everything else
  • spouse and descendants from you and someone other than that spouse
  • spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance
  • descendants inherit everything else
  • parents but no spouse or descendants
  • parents inherit everything
  • siblings but no spouse, descendants, or parents
  • siblings inherit everything

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If your husband closes to disinherit you, you may decide to renounce the will and take an elective share. You have no right to demand that your husband include you or your children, from this marriage or your prior marriage, in his will. Only a spouse has any right to any part of a person's estate.

Since Mn uses the concept of the augmented estate to define a person's estate, the definition of what is included can be very complicated. You might want to consult an attorney about what you might inherit. But, the attorney won't be able to force your husband to write the will as you see fit.

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Keep in mind that the will and intestate laws only apply to certain assets. Property you own jointly, accounts with you on them or with rights of survivorship, insurance policies and pensions which you are named as a beneficiary, and anything he gives you directly as a gift are yours (or whomever is named/joint owner). Anything you own outright remains yours. Yes, as an adult he has the right to decide who is entitled to his property and assets upon his demise. You have the same right. If he chooses to leave some part of his estate to his first two children, he absolutely has that right. Further, should he pass without a will, those children are legally entitled to part of the estate.

 

Whether you choose to leave anything to your stepchildren directly or not is up to you. See the chart above for what happens should you pass before he does.

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If something were to happen to him and we do not have a Will, what would happen to our assets.

 

I imagine "something . . . happen to him" every day.  If you're asking about what happens when he dies (death is not a matter of "if"), if he does not have a will, his estate will be divided according to the intestate succession law in your state (i.e., the law that says who gets what when someone dies without a will).

 

Based on a very quick google search, it appears that Minnesota law is somewhat complex as applied to a situation in which the deceased has no will and is survived by a spouse and descendants, some of whom are also the surviving spouse's descendants, and some of whom are not.  However, it appears that, in such a situation, the surviving spouse gets the first $150k in value of the estate, plus 50% of the remainder.  Keep in mind that the "estate" does not include property jointly owned with another with the right of survivorship, property held in an account (or otherwise) that has a pay-on-death beneficiary, and property held via trust.

 

 

 

if he decides to put a Will together, I have requested to be involved but he has made it clear that all decisions will be made by him. Does he have that right?

 

I guess that depends on what he means by "all decisions."  He obviously can't make decisions after he dies, but he's completely entitled to make a will without any input from you.  What he can't legally do is create a will that leaves you nothing.  If a surviving spouse is not happy with his/her deceased spouse's will, the surviving spouse can "elect against the will."  The effect of doing so gives the surviving spouse whatever he/she would have received had the deceased spouse had no will (or some other portion of the estate as provided by statute).  I do not know the specifics of Minnesota law in this regard.

 

 

 

should I meet with an attorney to ensure my 401k, pension and retirement accounts go to my children?

 

Federal law provides that an married employee's spouse is automatically the beneficiary of the employee's 401k account or other retirement/pension plan governed by ERISA.  If you want someone else designated as your beneficiary, your spouse must sign a waiver.  I don't know what other "retirement accounts" you have, but an IRA is not subject to the same rules.

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MN is complicated and includes such things as a family allowance.

Sounds like you may also want to talk with a divorce lawyer instead just to be thorough. In MN, even separate property (not acquired during marriage or acquired by way of gift or inheritance) is up for grabs in certain circumstances. In a marriage of your length, chances are that most of the stuff in his name alone is meaningless and it's a marital asset. That doesn't mean he can't leave separate property to whomever he likes, so long as you wind up with share that law requires if you elect against will.

That said, you may choose not to rock boat unless stuff in his name alone is worth a ton as compared to inadequate stuff owned jointly (noting he's free to take dough out of joint accounts and move into accounts in his name alone, or change a will he makes after making one you like).

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