When Are In-Laws Outlaws?

When Minnesotans divorce (and probably under many states’ laws if not all of them), the ex-spouse is stripped out of the other ex-spouse’s will by statute. Presumably we don’t need to explain why the legislature might want to enact that law but here we go: Wills often leave much or all of one’s estate to one’s spouse and divorces, perhaps many years after wills are executed, might not “clean up” the outstanding then-outdated wills. Ex-spouses are presumptively not intended devisees in wills; if you want to leave your ex-spouse money in your will, make a will after the divorce making it clear.

What if a will leaves all to the spouse (later ex-spouse) and, “[i]f any interest is not effectively disposed of” by that bequest, then 50/50 to ones heirs-at-law and one’s spouse’s heirs-at-law? (Heirs, by the way, are defined here.)

The title of the post isn’t perfect, but it is catchy, no? Has a better ring to it, maybe, than, “Are Former In-Laws Still Heirs After Divorce Under Minnesota Law?” which is more accurately the question to be decided by the Minnesota Supreme Court after a split panel of the Minnesota Court of Appeals answered, “Yes.”

Mathew Tomczik and Sara Headley married in 1992, Mathew executed a will in 1995, Mathew and Sara divorced in 1992, and Mathew died in 1995. Sara’s parents claim they are heirs entitled to half of Mathew’s estate and Judges Slieter and Bratlvold agreed (reversing the trial court, which had cut out Mathew’s outlaw/in-laws). Minnesota Court of Appeals Judge Susan Segal dissented.

Judge Segal pointed out that Mathew’s will did not name his in-laws. It used the generic term, “heirs-at-law.” Further, “heir-at-law” are unknown until a person’s death. The Court of Appeals majority opinion pointed out that, under Minnesota’s ex-spouse will statute, ex-spouses are treated as having died immediately before the dissolution” of the marriage. Lawyers and judges call this a “legal fiction,” of course. Judge Segal points out that identifying person’s “heirs-at-law” while the person is still living is a double-layered legal fiction.

Imagine if Sara were to have remarried before Mathew’s death, Judge Segal points out. Her new husband would be her heir-at-law! Can anyone suggest that Mathew intended that?

Here is the petition for Supreme Court review.

Here is the response to the petition.

We predict reversal of this decision. We are persuaded by Judge Segal’s dissent.

A far more experienced and knowledgeable trusts and estates lawyer, Nathan Kavlie disagrees:

Regrettably, I’m not as convinced that this case will be overturned. 

Yes, Justice Segal highlights the legal fiction of determining Sara’s heirs while she is still living, but MN Stat 524.2-804, subd. 2 says that “[p]rovisions of a governing instrument are given effect as if the former spouse died immediately before the dissolution”. That’s the fiction dictated by statute.

Giving effect to the will provisions as if she died on the date of their divorce, Sara’s heirs are determinable and the will says they receive 50% of the estate.

MN Stat 524.2-804 is supposed to eliminate the need to update documents upon divorce, but as the majority notes, the Minnesota legislature declined to adopt a more expansive mechanism that would revoke any provision tied to the ex-spouse. So we’re stuck with the “deemed death” fiction.  

Absent this more expansive mechanism: (1) A prudent drafter should clarify with a client who wants to provide for their spouse’s heirs/children/etc. if the bequest should terminate upon divorce (and the corresponding language should be written into the document); and (2) Divorcees should have their documents reviewed by an attorney.”