This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In Re Estate of:


Virgil W. Butts,



Filed May 13, 2003

Affirmed in part and reversed in part

Harten, Judge


Sherburne County District Court

File No. P3-02-327


Peter S. Donohue, Michael E. Novak, Donohue Novak at Law, 804 West St. Germain, P.O. Box 971, St. Cloud, MN 56302-0971 (for appellant Eleanor Butts)


David L. Kraker, Fred A. Reiter, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for respondent Dennis Butts)


            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N




            Appellant, a surviving spouse, challenges the denial of her petition for the spousal elective share of her deceased husband’s assets; respondent, the son of the decedent, challenges the order that appellant’s family allowance for 18 months be paid within 30 days.  Because appellant waived her right to elect against her deceased husband’s will, we affirm the denial of her petition; because the decedent husband’s assets are in multiple-party accounts that are not effective to pay the family allowance, we reverse the order.



            Appellant Eleanor Butts, f/k/a Eleanor Jones, married Virgil Butts in 1979.  It was his third marriage and her second; they both had children from previous marriages, but they had no children together.  They each had homes, which they sold to purchase another homestead.

In 1987, Virgil Butts executed a will.  In it, he named his son, respondent Dennis Butts, as personal representative and his spouse, appellant, as residuary legatee.  The will also provided that:

My spouse [appellant] and I have in the past held assets as non-probate assets as an estate planning device and anticipate continuing to do so in the future.  It should be understood that such holdings have been taken into account in the preparation of this Last Will and Testament.


Appellant consented to the will’s terms and waived her right to elect against it by signing this statement:

I, ELEANOR A. BUTTS, have read and approved of the provisions in the Will of my spouse VIRGIL W. BUTTS and have executed a mutual and reciprocal Will.  I execute this Consent to waive any election I may have against my spouse’s Will and to indicate my approval of it.


The spousal elective share was then 33 1/3%, pursuant to Minn. Stat. § 524.2-201(a) (1986). 

In 1990, appellant and Virgil Butts moved to Florida.  In 1994, the Minnesota legislature established 50% of the augmented estate as the elective share of a surviving spouse in marriages of over 15 years.  See Minn. Stat. § 524.2-202(a) (1994).  

            Appellant suffered a stroke in 1997.  She and Virgil Butts sold their Florida homestead, from which each received about $24,000, and moved back to an assisted living facility in Minnesota.  In 1998, Virgil Butts put almost all his assets into two joint investment accounts, one of $213,475, held in joint tenancy with respondent, and the other of $61,905, held in joint tenancy with respondent’s three half-sisters.

Virgil Butts died on 12 November 2001.  Appellant petitioned for a spousal elective share of the estate and 18 months’ family allowance.  Respondent opposed the petition, basing his opposition on appellant’s signed consent to the will and waiver of the spousal elective share. The parties stipulated to a 12-month family allowance of $1,500 monthly.  Following a hearing, the district court granted appellant’s request for an additional six months of family allowance, ordered that the aggregate family allowance of $27,000 (18 x $1,500) be paid within 30 days, and denied her request for an elective share of the estate.

Both parties challenge the district court’s decision.  Appellant contends that her signed consent and waiver do not preclude her right to elect the spousal share and, in the alternative, that she is entitled to elect a 17% (16 2/3%) spousal share because she waived her right to only the 33 1/3% share in force in 1987, not the 50% share in force now.  Respondent contends that the district court erred in ordering the aggregate family allowance to be paid within 30 days.



            The facts are undisputed; the issues presented are all questions of law and subject to de novo review.  See Morton Bldgs. Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992) (application of law to stipulated facts is a question of law, which this court reviews de novo).

1.         Waiver and Consent to Will

Appellant argues first that her consent is not part of the record and that her purported written consent has not been proved.  But appellant did not make any objection to the consent at trial; in fact, her attorney stated:


[W]e acknowledge that my client signed a consent to a Will that purports to give her the residue of the estate * * *.


Having agreed at trial that she signed the consent, appellant cannot now dispute the consent or her signature.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will not consider matters not presented to and considered by the district court).

Appellant then argues that respondent did not meet his burden of proving that appellant received the fair disclosure mandated by Minn. Stat. § 524.2-204 (1986): “[t]he right of election of a surviving spouse * * * may be waived * * * by a * * * waiver signed by the party waiving after fair disclosure.”  Assuming without deciding that this burden is respondent’s, we reject appellant’s argument.  She claims that respondent should have called her as a witness to prove fair disclosure, but at trial, appellant’s attorney stated that he had not called her to testify because “[she] is an eighty year old woman who has suffered a stroke in 1997 and would find testimony difficult today.”  Given the facts that appellant has never asserted that she did not receive fair disclosure and that her own attorney chose not to call her to testify, respondent would have had no reason to call her as a witness to prove fair disclosure.

            Appellant also argues that she is entitled to revoke her consent because, a year after her stroke and eleven years after making his will, Virgil Butts set up joint investment accounts with his four children.  But the will to which appellant consented specifically provided that both she and Virgil Butts could and did hold non-probate assets as a means of estate planning and anticipated “continuing to do so in the future.”  The fact that Virgil Butts had such assets is not a basis for revoking appellant’s consent to the will and her waiver of her elective share.

            Finally, appellant argues that depriving her of her elective spousal share is unfair.  She relies on McKee-Johnson v. Johnson, 444 N.W.2d 259 (Minn. 1989), for this argument, but her reliance is misplaced.  McKee is distinguishable: it concerns an antenuptial agreement.  Moreover, it holds that provisions in such agreements are procedurally fair if each party receives full financial disclosure and has an opportunity to consult with independent counsel.  Id. at 265-66.  Here, appellant has not claimed that Virgil Butts did not make full financial disclosure or that she could not have consulted with independent counsel in 1987, when she consented to the terms of the will and waived her right to the spousal elective share. 

            The district court did not err in concluding that appellant’s consent and waiver preclude her from seeking the spousal elective share.

2.         Statutory Change

            Appellant argues in the alternative that she is entitled to a 17% (16 2/3%) spousal elective share because she consented to waive only a 33 1/3% share, and the share she would now receive is 50%.  See Minn. Stat. § 524.2-202(a) (2002).  

                        The commonly accepted definition of waiver is that it constitutes a voluntary relinquishment of a known right whose essential elements are both intent and knowledge, actual or constructive. * * *


                        * * * [U]nder well-established principles of law [parties] are conclusively presumed to be aware of existing statutes and of the fact that revisions in them occur from time to time. * * *


                        We have also the presumption * * * that a testator not only knows the law of his state as it stood when the will was drawn, but also that he knew that the legislature could change or repeal the law.


Albrecht v. Sell, 260 Minn. 566, 569-70, 110 N.W.2d 895, 897-98 (1961) (quotations omitted).   When she signed the waiver, appellant had constructive knowledge of the potential for change in the statutory elective share.

            Holding that waiver of the spousal elective share is void if the statute changes between the making of the will and the death of the testator would read a provision into the statute.  This court cannot read into a statute what the legislature has purposely omitted or inadvertently overlooked.  Ullom v. Ind. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. App. 1994).  The change in the statute neither voids appellant’s waiver of the 33 1/3% spousal elective share nor gives her a right to a 17% (16 2/3%) spousal elective share.

3.         Family Allowance

The district court found that appellant is entitled to a family allowance of $1,500 monthly for 18 months pursuant to Minn. Stat. § 524.2-404 (2002) and that

[b]ecause of the status of the estate and the non-probate manner in which the assets are held, it is appropriate for the full Family Allowance to be paid to [appellant] in one lump sum payment of $27,000, due and payable within 30 days of the date of this Order.  There shall be deducted from said sum any monies already paid out to [appellant].[1] 


Respondent argues that the two jointly-held investment accounts that comprise Virgil Butts’s estate are not  “available” for payment of creditors.  We agree.

Minn. Stat. § 524.6-207 (2002) provides that:

No multiple-party account will be effective against an estate of a deceased party to transfer to a survivor sums needed to pay debts, taxes, and expenses of administration, including statutory allowances to the surviving spouse * * *, if other assets of the estate are insufficient, to the extent the deceased party is the source of the funds or beneficial owner.  


See also Berg v. D.D.M., 603 N.W.2d 361, 364 (Minn. App. 1999) (holding that an investment account jointly owned by a decedent and his surviving spouse was not available under Minn. Stat. § 524.6-207 to pay child support to the decedent’s child), review denied (Minn. 14 March 2000). 

Appellant argues that Berg is distinguishable because it concerned child support and she is seeking a family allowance, which, according to Minn. Stat. § 524.2-404(d), “is exempt from and has priority over all claims.”  But the question here is not priority of claims: it is whether a particular type of account is available to pay any claims.  Apparently the district court targeted the investment accounts to pay the family allowance.  Berg indicates that joint investment accounts are not available to pay claims.  We reverse the district court order that the Butts estate pay the aggregate family allowance within 30 days.

            Affirmed in part and reversed in part.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Respondent has not challenged, and we do not reverse, the district court’s finding that “[the parties] stipulated and the Court ordered payment to [appellant] of a Family Allowance of $1,500 per month for a period of 12 months” nor the finding that “[appellant] is entitled to a Family Allowance of $1,500.00 per month for maintenance for a period of 18 months * * *.”