STATE OF MINNESOTA

IN SUPREME COURT

C9-95-1751

In Re: Estate of Arnold J. Kruegel, Deceased.

O R D E R

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for further review filed by the children of the decedent Arnold J. Kruegel be, and the same is, granted for the limited purpose of reversing that portion of the court of appeals' decision filed April 2, 1996 which declares that the district court abused its discretion in holding that Jeannette Kruegel's petition for electing the elective share was not timely filed. Minn. Stat. § 524.2-205(a). As the trial court correctly determined, the last day for filing a timely petition expired on January 21, 1995 without either a filing or a request for an extension of time for filing. Instead, the notice of election was filed on February 10, 1995. The court of appeals held that because Kruegel was actively engaged in negotiations with the estate as to how the distributions should be made, she should be equitably relieved of the time limitations of section 524.2-205(a).

However, in our view, it is for the trial court to determine, in the exercise of its discretion, whether such equitable consideration exists and then whether the statutory time limitations may be avoided. A review of this record demonstrates no clear abuse of that discretion. Accordingly, the election was properly barred, and the decision of the court of appeals to the contrary is reversed.

Dated: July 26, 1996

BY THE COURT:

A.M. Keith

Chief Justice