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Wills

Minnesota law recognizes families formed through marriage, blood, and adoption.If an unmarried person dies without a will, they are said to have died “intestate,” and their property passes to their biological family in very specific, state-mandated ways. Though the law was intended to try to approximate what the dead person may have wanted, the law was not drafted with same-sex couples in mind.

Without a will, your unmarried partner is not legally entitled to inherit anything from you unless it is the sort of property that has their name on the title or as designated beneficiary. Everything will go to your biological family, and if you have no biological family, to the State of Minnesota. 

A will is a flexible document, and can be used to pass virtually any property to virtually any person. It can be tailored completely to your individual needs, and is easily changed or revoked. In one’s will, a person can designate specific items or specific amounts of money to go to particular people, and say: “everything else goes to X.” This latter phrase is called a “residuary clause,” and without one, “everything else” will follow the intestacy laws back to your biological family.

Survivors can challenge the legal validity of wills, and consulting an attorney in the drafting of the document, will substantially increase the chance that it will survive a challenge.

Some things do not need to be listed in a will to pass to your partner. For example, if you own a home as joint tenants, upon the death of one partner automatically owns the whole property. This is not the case if the home is held as “tenants in common.” Similarly, any asset such as savings bonds, bank accounts, or life insurance to which you have designated a particular beneficiary in case of your death need not be listed in a will for the beneficiary to receive the benefit or proceeds, and these arrangements are generally far more difficult to challenge in court.

In Minnesota, the basic requirements of a will are simple: it must be in writing, signed by you, and witnessed by two other “uninterested” (that is, they don’t stand to inherit from your will) people who also sign. A document with these characteristics, clearly leaving property to other people, would be a valid will.

You can nominate a person to act as your Personal Representative. Without this designation, a probate court could appoint someone you would not have chosen yourself. The will should be kept in a safe place, with copies given to people you trust. Although an attorney theoretically is not necessary to make a will valid, consulting with an attorney before signing your will is highly advised in order to avoid unforeseen problems.

This information is intended to be general and educational, and not intended to be legal advice. Not all options discussed are always appropriate for every family or situation. The law is continually evolving on GLBT issues and information can change over time. Always consult with an attorney when drafting or signing documents affecting your legal rights.

For more information, please contact the OutFront Minnesota Legal Program at 612-822-0127 ext. 230 or legal@outfront.org.

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