In re the Supervised Estate of: William J. DeFore a/k/a William Joseph DeFore, Deceased.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1378

In re the Supervised Estate of:
William J. DeFore a/k/a William Joseph DeFore, Deceased.

Filed May 18, 2020
Reversed and remanded; motion denied
Ross, Judge

Hennepin County District Court
File No. 27-PA-PR-17-1083

Kay Nord Hunt, Bryan R. Feldhaus, Lomme n Abdo, P.A., Minneapolis, Minnesota (for
appellant)

Thomas K. Cambre, Merrigan, Brandt, Ostenso & Cambre, P.A., Hopkins, Minnesota (for
respondent Lorrie Wood)

Dudley R. Younkin, Younkin Law Office, St. Paul, Minnesota (for respondent John Wood)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Decedent William DeFore’s surviving spouse attempted to claim her spousal
elective share, filing a document captioned, “Written Statement of Claim,” rather than the
statutorily named, “petition for the elective share.” For the next year and a half, the district
court treated the document as if it were a petition for elective share, as did the parties, who
engaged in discovery to prepare to try the question of the amount of the elective share. But
the district court then granted an heir’s mo tion to treat the documen t as invalid and to

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effectively foreclose any elective-share allocation based on the document’s misnaming and
a purported failure to notify an interested part y of the election. Because the district court
treated the document as if it were properly named and the parties likewise took substantial
litigation steps treating the document as if it were properly named, we hold that the
document adequately informed the court and the parties that the survivin g spouse was
seeking her elective share. And because the hearing-notice requirement is not required to
perfect a petition for elective share, we hold that the petition satisfied the applicable
statutory requirements. We reverse.
FACTS
This appeal concerns a dispute over th e estate of William DeFore between his two
children. William and Barbara DeFore had b een married for 65 ye ars when, in 2016,
Barbara left the marital home and filed for divorce. The separation divided the family, with
daughter Lorrie Wood generally aligning with William and so n Daniel DeFore generally
aligning with Barbara. William responded to the divorce petition by removing Barbara as
a beneficiary on two of his retirement account s and instead designating Lorrie and her
husband John Wood as beneficiaries. William also closed his We lls Fargo joint bank
account with Barbara and opened a new bank account, naming Lorri e as joint account
holder. And William purchased a riding lawn mower and named Lorrie co-owner.
William died on August 23, 2017, and th e district court therefore dismissed
Barbara’s divorce petition. Probate proceedings initiated on August 31, 2017, with Daniel
petitioning to be appointed as the estate’s special administrator. Daniel petitioned to admit

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William’s lost will, which was dated Septembe r 1983, and the probate court admitted the
will and appointed Daniel as the estate’s personal representative.
Daniel’s attorney sent Barbara a notice info rming her of her statutory right to take
an elective spousal share of William’s estate. Barbara responded promptly on October 16,
2017, by filing in the district court a document entitled, “Written Statement of Claim.” The
document stated, “The Estate is or will become indebted to me as follows: Pursuant to
Minn. Stat. § 524.2-202 et seq., my elective sh are, including supplemental elective share,
of decedent’s augmented estate.” It specified, “The nature of the claim is: statutory spousal
rights.” The district court and the parties tr eated the “Written Statement of Claim” as
though Barbara had petitioned for her elective spousal share. For example, the district court
set the matter for trial and, in a pretrial conference call, the parties negotiated how to
proceed with discovery to determine the assets that Barbara would receive through election.
They then exchanged interrogatories to identify all assets in the net probate estate. Lorrie
filed a “Statement of Issues” for trial, stat ing that the sole ques tion to be litigated was
Barbara’s elective share. The parties narrowed the dispute to three assets in which William
had granted Lorrie an interest after the separation: William’s two retirement accounts
naming Lorrie and her husband John as beneficiaries, William’s checking account jointly
owned by Lorrie, and William’s lawn mower. The district court continued the trial multiple
times, but the trial on the amount of Barbar a’s elective spousal share never occurred
because she died on March 6, 2019.
On March 28, 2019, Lorrie changed her litigation approach. Rather than continue to
litigate the amount of Barbara’ s spousal share, she took th e position that Barbara had

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forfeited the right to any spousal share. She moved the district court to determine that
Barbara was time-barred from filing for an election, arguing that Barbara’s October 2017
filing had failed to comply with the statutory procedure for seeking a spousal share and the
deadline for refiling had long passed.
The district court granted Lorrie’s motion, reasoning that Barbara’s filing failed to
comply with the requirements of Minnesota Statutes section 524.2-211(a) (2018) because
Barbara’s “Written Statement of Claim” purporting to seek a spousal elective share did not
constitute a “petition” within the wording of the statute and because she did not give proper
notice to Lorrie’s husband, an interested party.
Daniel appeals.
D E C I S I O N
Daniel argues that the district court e rred by deciding that Barbara’s elective-share
filing was inadequate. Lorrie’s husband John W ood filed a motion as king us to dismiss
him as a party to the appeal. For the following reasons, we reverse the district court’s
decision, and we deny John’s motion.
I
Daniel appeals from the district court’ s decision, which the district court
characterized as “summary judgment,” granting Lorrie’s motion. Whether the district court
properly granted summary judgment is a que stion of law that we review de novo. In re
Estate of Kotowski , 704 N.W.2d 522, 526 (Minn. App. 2005), review denied (Minn.
Dec. 21, 2005). We review wh ether there are any genuine issues of material fact and
whether the district court erred in applying the law, viewing the evidence in the light most

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favorable to the party against whom summary judgment was granted. Id.; see also Minn.
R. Civ. P. 56.01.
This appeal requires us to construe the provision of the probate code that proscribes
how a surviving spouse must seek an elective share:
[T]he election must be made by filing in the court and mailing
or delivering to the personal re presentative, if any, a petition
for the elective share w ithin nine months after the date of the
decedent’s death, or within six months after the probate of the
decedent’s will, whichever limitation later expires. The
surviving spouse must give notice of the time and place set for
hearing to persons interested in the estate and to the
distributees and recipients of portions of the augmented estate
whose interests will be adversely affected by the taking of the
elective share.
Minn. Stat. § 524.2-211(a). The statute unambiguously states how and when “the election
must be made.” A surviving spouse must make the electi on “by filing in the court and
mailing or delivering to the personal representative, if any, a petition for the elective share
within nine months after the decedent’s death.” The district court determined that Barbara’s
“Written Statement of Claim” failed to comply with the statute for two reasons: it was not
a “petition” and Barbara did not give notice of the hearing to Lorrie’s husband, who would
be adversely affected by Barb ara being allocated her elective share. Neither reason is
sustainable.
The district court erred by concluding th at Barbara’s filing was not a petition. The
district court must liberally construe the proba te code rather than elevate its form over its
substance. Minn. Stat. § 524.1 -102(a) (2018). The district court reasoned that Barbara’s
filing was labeled as a written statement of cl aim rather than as a petition and that the

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probate code defines “claims” and “petition[s]” differently. See Minn. Stat. § 524.1-201(8),
(41) (2018). Although Barbara’s document was not captioned correctly as a petition
seeking to make an election for her spousal share, its substance made perfectly clear what
it was. It cited to “Minn. Stat. § 524.2-202,” the elective-share statute, and clearly stated
that the estate “is or will become indebt ed” based on her “elective share, including
supplemental elective share.” The parties’ a nd district court’s treatment of Barbara’s
request demonstrates that it was obviously a petition in claim’s clothing because all treated
it exactly as a petition seeking to make an election for her spousal share. The district court
set (and then reset multiple times) a trial date to resolve her election, the parties engaged
in discovery on that issue, and Lorrie, who la ter moved the court to treat the document as
invalid, had long before described the trial i ssue triggered by the document precisely as
Barbara’s elective share: “Barbara DeFore is making a claim for a supplemental elective
share of Decedent’s Estate in an amount to be determined.”
Caselaw supports our rejection of a fo rm-over-substance approach to Barbara’s
filing by teaching that technical defects in probate filings are not fatal. In Peterson v.
Marston, the supreme court affirmed this court’s holding that creditors properly presented
a claim against a decedent’s estate even though their document did not comply with
technical statutory requirements. 362 N.W.2d 309, 310, 314 (Minn. 1985). Creditors had
entered into a contract fo r deed with the decedent. Id. at 310. They sent a letter to the
attorney for the estate, indicating that they had seen a notice by publication requiring debts
of the estate to be submitted and asking if th ey needed to take a ny action regarding their
contract for deed. Id. at 310–11. After the attorney re sponded, telling the creditors they

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need not file anything with the probate court, the creditors filed no formal claim. Id. at 311.
When the creditors late r sued on the contract, the distri ct court determined that the
creditors’ letter was not a “claim” under the probate code because it was framed instead as
an inquiry. Id. at 311–12. But we reversed, and th e supreme court upheld our reversal,
holding that, despite the letter’s failure to expressly demand payment, in context it evinced
their intent to make a claim. Id. at 312. The court reasoned that “the form in which a claim
is presented is not important as long as it contains sufficient info rmation to enable the
personal representative to determ ine its extent and character.” Id. at 313. The letter
therefore sufficiently presented a claim against the estate. Id.
Like the creditors’ letter in Peterson, Barbara’s filing evinced her intent. It cited the
elective-share statutes to describe why “[t]he Estate is or will become indebted to” her. The
facts of this case more emphatically demo nstrate a technicality-o ver-substance injustice
than the facts in Peterson; as we have discussed, the district court here, along with all the
parties, for a lengthy period took every action on Barbara’s filing to demonstrate that they
knew it represented Barbara’s intent to make a spousal-share election. That she captioned
it with the word “claim” instead of “petition” is, at leas t under the circumstances here, a
technical error with absolutely no meaningful effect. No one asserts that Barbara failed to
mail or deliver the document to a personal representative or that she failed to file it before
the statutory deadline. Applying the plain requirements in the statute, we hold that
Barbara’s filing was a valid petition for spousal elective share under section 524.2-211(a).
The district court also e rred by determining that Ba rbara’s petition was deficient
because she did not notify Lorrie’ s husband John, an interested party. The district court

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mistakenly read the statute as requiring notice to interested parties to perfect a petition
for a spousal elective share. Th e statute does indeed require that the surviving-spouse
petitioner give notice to all interested persons “of the time and place set for [the] hearing”
where the spousal-share issu e will be tried. But the st atute nowhere conditions the
perfection of the surviving spouse’s petition on meeting this hearing-notice requirement. It
instead omits this procedural hearing requir ement from the plainly identified substantive
elements of making an election. Other provisi ons in the probate code outline the method
for providing the notice of a hearing. “If notice of a hearing on a petition is required,” three
permissible methods are available: mailing a copy at least 14 days before the hearing,
delivering a copy personally at least 14 days before the hearing, or, if the address or identity
of the person cannot be ascertained, publishing in a newspaper for two consecutive weeks
with the last publication occurring at leas t 10 days before the hearing. Minn. Stat.
§ 524.1-401(a)(1)–(3) (2018). The notice-method statute and the elective-share-proceeding
statute together demonstrate that the notic e requirement is a prerequisite to the hearing,
not to perfecting an election. We reject Lorri e’s argument that Barbara’s failure to notify
John of the hearing rendered Barbara’s election filing deficient.
Lorrie urges us to review based on an a buse-of-discretion standard of review and
affirm on equitable grounds, arguing that we should apply the supreme court’s analysis
developed in In re Estate of Kruegel, 551 N.W.2d 718 (Minn. 1996). The argument would
lead us astray. Kruegel held that, once the district court declined to find equitable grounds
to excuse a deadline breach, our court cannot substitute its own discretionary judgment for
that of the district court. Id. at 719. Unlike Kruegel, which addressed whether a surviving

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spouse’s tardy filing of her elective-share petition could be excused based on equitable
considerations, see id., our case involves the purely legal question of whether a timely filing
comprising the proper substance of a petition constituted a valid petition for the elective
share. Kruegel is therefore inapposite.
We do not intend to suggest that the di strict court or parties must treat an
inaccurately captioned document as a valid sp ousal-share election. We emphasize that,
instead, our decision today rests substantially on the proper substance of Barbara’s filing.
The district court and the parties repeatedly demonstrated their understanding that the
filing—which had the essential elements of a petition and was enough to trigger litigation
over the spousal share—was in fact an elec tive-share petition. We reverse the district
court’s grant of summary judgment favoring Lo rrie, and we remand for the district court
to engage in additional proc eedings, treating Barbara’s f iling as her valid petition for a
spousal-share election. We offer no opinion as to whether or how Barbara’s postfiling death
affects the spousal-share analysis or proceedings.
II
Lorrie’s husband John asks us to dismiss him as a party to this appeal, arguing that
no appealable issues concern him and that this court lacks personal jurisdiction over him.
We deny his motion. We observe that it conflicts with the position taken by Lorrie, who
insists that his status as an interested party required Barbara to notify him of her
spousal-share election. John is a proper party under the rules. The “party appealing” to the
court of appeals is the appellant, and the “adver se party” is the respondent. Minn. R. Civ.
App. P. 143.01. An adverse party is one “w ho would be prejudiced by a reversal or

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modification of an order, award, or judgment.” Banal-Shepherd v. Shepherd, 829 N.W.2d
426, 428 (Minn. App. 2013), review denied (Minn. May 21, 2013 ). John is named as a
beneficiary in the two retirement accounts at issue in the elective-share dispute. His
affidavit filed in the district court asserted that he was an “interested party” because of his
stake in those accounts. And the district c ourt found that he “wou ld be affected by
[Barbara’s] taking of the elective share.” Th e amount of Barbara’s elective share could
impact John because the amou nt could reduce what he might otherwise receive from the
retirement accounts. John is an adverse party who, according to Daniel’s proof of service,
was served with copies of the notice of appeal and other relevant pleadings.
John also argues that he is not a prop er party to this appeal because he was
never served with notice of a spousal-share hearing and therefore never made a proper
party. The contention rests on the same mistaken premise th at Lorrie asserts: Barbara’s
election was statutorily deficient because Jo hn never received proper notice of Barbara’s
election under Minnesota Statutes section 5 24.2-211(a). Because we have held that the
hearing-notice requirement is not a prerequisite to perfecting a surviving spouse’s election
under the statute, and because no hearing has yet been held on the elective-share issue, the
question of whether John was properly served notice of the hearing is not ripe for review.
Reversed and remanded; motion denied.