                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-0200

                                  Kimberlee Ann Nelson,
                                       Appellant,

                                             vs.

                                   Lynette Nelson, et al.,
                                      Respondents.

                                  Filed October 6, 2014
                                        Affirmed
                                      Reyes, Judge

                             Pennington County District Court
                                   File No. 57CV1324

Denise A. Sollund, Brink, Sobolik, Severson, Malm & Albrecht, P.A., Hallock,
Minnesota (for appellant)

Ronald I. Galstad, John D. Schroeder, Galstad, Jensen & McCann, P.A., East Grand
Forks, Minnesota (for respondents)

       Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and

Reyes, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       This is an appeal from the district court’s grant of summary judgment declaring

that respondents are the rightful beneficiaries of the decedent’s life-insurance proceeds.

Appellant argues that the district court erred by determining that life insurance is not a
marital asset and by failing to award her the proceeds under Minn. Stat. § 518.58, subd.

1a (2012), which prohibits spouses contemplating divorce from transacting in or using

marital assets to derive a profit or loss without the other party’s consent. Because we

conclude that there is no remedy available to appellant under Minn. Stat. § 518.58, subd.

1a, which pertains only to dissolution proceedings, we affirm the district court’s order.

                                          FACTS

       Decedent Michael Nelson and appellant Kimberlee Nelson were married in 1996.

Decedent later executed a will that intentionally omitted appellant from sharing in his

estate, believing that her family would provide for her. In 2007, decedent purchased a

term life-insurance policy with a $1,000,000 benefit, naming appellant as the primary

beneficiary of the policy. The policy’s premiums were paid by a business owned by

decedent.

       In February 2012, decedent contacted an attorney to prepare a joint petition and

stipulation to dissolve his marriage with appellant. In April 2012, before the divorce

action was initiated or the joint petition and stipulation for divorce was prepared,

decedent changed the beneficiary of his life-insurance policy to respondents Lynette,

Clifford, and Tracy Nelson, decedent’s parents and sister. In May 2012, appellant served

a summons and petition for dissolution of marriage on decedent.

       Decedent died in September 2012, before his marriage to appellant was dissolved.

Thereafter, decedent’s mother was appointed personal representative of his estate.

Although excluded from decedent’s will, as the surviving spouse, appellant asked for




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homestead rights, a family allowance, household furnishings, and an elective share of

decedent’s augmented estate.

       In November 2012, appellant filed a declaratory action against respondents,

claiming entitlement to the proceeds of decedent’s life-insurance policy, alleging that the

change of the designated beneficiary constituted a transfer of marital assets in

contemplation of divorce, in violation of Minn. Stat. § 518.58, subd. 1a. In September

2013, appellant and respondents made cross-motions for summary judgment, each

claiming entitlement to the proceeds of decedent’s life-insurance policy. The district

court granted summary judgment to respondents, concluding that the life-insurance

policy was not a marital asset, decedent was not under any restraints by the court when he

changed the designated beneficiary on the policy, and the life-insurance policy is not an

asset subject to property division in a divorce. This appeal followed.

                                      DECISION

       “A motion for summary judgment shall be granted when the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and that either party

is entitled to judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761

(Minn. 1993) (citation omitted). Here, the facts are undisputed, but appellant contends

that she is entitled to decedent’s life-insurance proceeds as a matter of law. “When the

material facts are not in dispute, we review the [district] court’s application of the law de

novo.” In re Collier, 726 N.W.2d 799, 803 (Minn. 2007).




                                              3
       Appellant claims that she is entitled to the insurance proceeds based on Minn. Stat.

§ 518.58, subd. 1a, which provides:

              During the pendency of a marriage dissolution, separation, or
              annulment proceeding, or in contemplation of commencing a
              marriage dissolution, separation, or annulment proceeding,
              each party owes a fiduciary duty to the other for any profit or
              loss derived by the party, without the consent of the other,
              from a transaction or from any use by the party of the marital
              assets. If the court finds that a party to a marriage, without
              consent of the other party, has in contemplation of
              commencing, or during the pendency of, the current
              dissolution, separation, or annulment proceeding, transferred,
              encumbered, concealed, or disposed of marital assets except
              in the usual course of business or for the necessities of life,
              the court shall compensate the other party by placing both
              parties in the same position that they would have been in had
              the transfer, encumbrance, concealment, or disposal not
              occurred. . . . In compensating a party under this section, the
              court, in dividing the marital property, may impute the entire
              value of an asset and a fair return on the asset to the party
              who transferred, encumbered, concealed, or disposed of it.

Appellant contends that, because decedent changed the beneficiary designation on his

life-insurance policy in contemplation of divorce, she is entitled to the proceeds of his life

insurance, which is the same position she would have been in had he not changed the

designation in violation of this statute. We disagree.

       Minn. Stat. § 518.58, subd. 1a, requires a “current dissolution, separation, or

annulment proceeding” in order to be applicable, and the remedy contemplated is

imposed in the dissolution proceeding, during the division of marital property. But

“[w]hen a party to a marriage that has not been dissolved dies, the marriage relation ‘no

longer exists’ and, as a result, any then-pending dissolution proceeding abates.” In re

Marriage of Rettke, 696 N.W.2d 846, 850 (Minn. App. 2005) (quoting Tikalsky v.


                                              4
Tikalsky, 166 Minn. 468, 470, 208 N.W. 180, 180 (1926)). Appellant and decedent’s

dissolution proceeding ended upon decedent’s death. See id. (clarifying that “you can’t

‘divorce a dead person’”). This left appellant in the position of a bona fide heir as a

surviving spouse and without a current dissolution proceeding in which to grant her

requested relief.

       Appellant attempts to take advantage of both her rights as a surviving spouse and a

remedy under the marriage-dissolution statute. This sort of double-dipping has been

frowned upon by this court. See Rettke, 696 N.W.2d at 851 (agreeing with the personal

representative of husband’s estate that wife could not “both take a share from the

mediated dissolution settlement as if the dissolution had gone through, and also take

advantage of the fact that when husband died, since the dissolution had not been

finalized, she was in all respects a bona fide heir, a surviving spouse.”). Instead of being

entitled to benefits under both probate and dissolution statutes, appellant is in the same

position as any other surviving spouse whose decedent-spouse designated a third party as

his or her life-insurance beneficiary. Appellant has no claim to the proceeds of the policy

under the dissolution statutes, and any relief available to her derives from a body of law

outside the dissolution statutes. See McCloud v. Aetna Life Ins. Co., 221 Minn. 184, 187-

89, 21 N.W.2d 476, 478-79 (1946) (providing that a life-insurance beneficiary’s rights

“become vested only [if] she remain[s] the beneficiary at the death of the insured,” and

stating that “[a]lmost without exception the courts have upheld the right of an insured to

change beneficiaries where the policy so provides and where no agreement to the

contrary has been established.”)


                                              5
      Appellant is not entitled to relief under Minn. Stat. § 518,58, subd. 1a,1 and the

district court did not err by granting summary judgment to respondents.

      Affirmed.




1
  This situation is distinguishable from the one presented in Am. Family Life Ins. Co. v.
Noruk, 528 N.W.2d 921 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). In
Noruk, this court considered the alleged wrong of the decedent-spouse in changing his
life-insurance beneficiary in the context of the restraints put on decedent by the divorce
proceeding. Id. at 924. But unlike Minn. Stat. § 518.58, subd. 1a, the applicable statute
in Noruk, Minn. Stat. § 518.091 (1994), did not detail a remedy available to the aggrieved
party and therefore did not limit the availability of a remedy to a dissolution proceeding
or division of marital property. Moreover, the court in Noruk did not address whether the
action was properly considered in the context of the dissolution statute.

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