Signing a deed as spouse to fund a revocable trust is not necessarily a waiver of the exempt homestead election under Minn. Stat. § 524.2-402.

Anderson v. Houghtaling, Filed December 26, 2017; A17-0867 (Minn.Ct.App. 2017). The majority of this case is a malpractice case that is remanded to address factual issues and the malpractice analysis is interesting in its own right. But the court addressed a curious issue regarding whether a spouse’s signature on a deed to transfer real estate into a revocable trust effectively waives the exempt property election. In the case the decedent created a revocable trust and amended it in 2008. The decedent and his wife conveyed the house into the revocable trust. The trust was then amended again a little over 2 months later. Under Minn. Stat. § 524.2-402 the spouse has the exempt homestead right unless the spouse consented “in writing” to that testamentary or “other disposition.” The issue, then, is whether signing a deed to transfer real estate into a revocable trust is a consent to the disposition under the terms of a revocable trust. The court found that the exempt right can be waived under Minn. Stat. § 524.2-213 after “fair disclosure.” There was no evidence in this record that there was fair disclosure. So the mere act of signing the deed was not a waiver of the exempt property right absent some other evidence reflecting a fair disclosure.

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