Spousal rights

Under Missouri law, a surviving spouse has certain statutory rights in a deceased spouse’s estate unless there was a valid contract between the spouses waiving such rights.

These spousal rights are in addition to the provisions made for a surviving spouse in the “intestacy statutes” (see the No Will? page), so both must be consulted to determine what a surviving spouse is entitled to receive.

One right of a surviving spouse is to receive “exempt property” (unmarried minor children also are entitled to share in the exempt property). Under Missouri law, exempt property includes the family Bible, books, clothing, household appliances, furniture, one automobile, and the like.

A surviving spouse (and surviving unmarried minor children) also are entitled to a “support allowance,” which is an award made to support the surviving spouse (and unmarried minor children) for a period of one year after the deceased spouse’s death. The amount of the support award is determined by the Probate Division on the basis of the family’s previous standard of living.

A third statutory right of a surviving spouse – which is not affected by contrary provisions of the deceased spouse’s will and can only be waived by a valid contract – is the right to receive a specified share of the deceased spouse’s estate. Details follow:

  • The share is one-half if there are no children or grandchildren, or one-third if there are children or grandchildren.
  • The share is in addition to the exempt property and support allowances.
  • The share is subject to the claims of creditors.

In determining the share, certain other property received by the surviving spouse such as life insurance, joint property and trust assets, must be taken into account.

Absent a valid contractual agreement to the contrary, if the deceased spouse left a will giving the surviving spouse less than the statutory share, the surviving spouse has the right to elect to “take against the will.” This would result in the surviving spouse receiving the statutory share in lieu of the provisions made in the will. An election to take against the will must be filed by the surviving spouse fairly promptly after the deceased spouse’s death.

So-called “omitted” spouses – those who were married after the deceased spouse made a will – also have the right to claim a share of the deceased spouse’s estate.

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