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No Will, but a Way … Same-sex partner gets inheritance

This November a voter ballot will be held in Minnesota to determine whether to pass a State Constitutional amendment that defines marriage as only between a man and a woman. Amidst this backdrop, Thomas Proehl married James Morrison in 2008 in California.  While living in Minnesota, Mr. Proehl died in 2011 without a will.  The final judicial order can be found here.

In Minnesota, if there is no will or other estate planning devices, a spouse is normally first in line to take property.  However in Minnesota, which has adopted the Defense of Marriage Act (DOMA), same-sex marriages are not legally recognized.

The Case: Mr. Morrison “Wins” without a will

Hennepin County District Court Referee George Borer ruled that Minnesota’s DOMA law does not prohibit same-sex partners the right to inherit.  So, Mr. Morrison “won” in the sense that he did finally get property rights.

However, he spent over a year muddled in the court system, wasting his time and money.  His personal business was aired out publicly, whether he liked it or not.  And perhaps most importantly, he had to go through all of this in an uncontested case.  In other words, no one was opposing Mr. Morrison’s claim on the property and he still had to endure significant legal roadblocks.

The purpose of this piece isn’t to make any kind of statement one way or another regarding same-sex marriages.  Instead, this is just another example of unexpected problems that can arise when individuals don’t make an adequate estate plan. 

Whether it include a will, the proper trust instruments, a health care directive, a power of attorney, or any other transfer on death documents, a properly drafted estate plan is critical to help your successors avoid these kinds of transfer problems.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

Dying Intestate in Minnesota: The choices you lose by not having a will

July 27, 2012 by  
Filed under Estate Planning

What Intestacy Means

Dying intestate means dying without a valid will.  If you die  without a will and without any other instruments to dispose of your property, the State of Minnesota will decide for you how to distribute your property.

What happens to my property if I die intestate in Minnesota? 

State statutes will specifically determine who gets your property.  Sometimes, this will coincidentally be the same people you would have given property to anyway.  Often times, however, it will not be.  According to Minnesota statute, the surviving spouse may get the entire estate or at least 1/2 of the estate, depending on circumstances.  

After the spouse, the state will maintains a list of relatives who will take the estate in the following order:

  1. To the deceased’s descendants (children first, then grandchildren and further down the list if the children died already)
  2. Parents of the deceased if they are still alive
  3. To descendants of the deceased’s parents (brothers and sisters, half-brothers and sisters, etc.)
  4. And on down the list to more distant relations

A will is important if you want to give a certain piece of personal property to someone, like a family heirloom.  A will is also useful if you want to specifically disinherit someone (so they don’t get property when they otherwise would if you died intestate).

One myth to address: There are some who believe that the state keeps all of your money if you die intestate.  This is generally false.  Unless you have absolutely no heirs (no children, grandchildren, spouse, brothers, sisters, nieces, nephews, etc.), the state doesn’t keep your money.

Other Considerations: Minor Children and Disinheriting Relatives

In addition to losing the right to decide who gets your property, anyone who dies intestate loses the ability to decide who will raise their minor children as well as who will oversee the distribution of his or her estate.  The former point may be especially important if the deceased was the last living parent or if both parents die simultaneously and both don’t have wills.

Regardless of how you set it up, a will is often an important part of any estate plan.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.