![]() Since this article has already foreshadowed that a surviving spouse’s rights are different depending on how the decedent’s assets are categorized, a threshold inquiry requires a determination of what is, and is not, in a probate estate.Īt death, the real and personal property of a decedent, with the exception of exempt property described in§ 474.250, RSMo, passes to the individual to whom it is devised under the decedent’s last will or to the decedent’s heirs at law if there is no valid will. Still, in spite of the shifting landscape of estate and wealth planning, a number of modest default rights and protections remain. Many of the protections applicable to a well-funded probate estate did not find their way into the law of trusts or to laws governing non-probate transfers. 7īut in modern times, far more assets pass by non-probate transfer than by probate, and many or most people of substantial means in the 21st century utilize trusts to carry out their estate planning. In their stead were enacted statutes providing for a spousal “forced share” of the decedent’s probate estate and codified rights to recover asset transfers in “fraud” of marital rights. 6 Missouri abolished both estates in the 1950s pursuant to § 474.110, RSMo in the probate code. 5 “Dower,” which is traceable in one form at least back to Magna Carta (1215), was the somewhat corresponding right of a wife to a life estate in one-third of the land owned by her late husband in fee. ![]() “Curtesy” was a husband’s common law right to a life estate in the land that his wife owned during their marriage, so long as a live child was born to the couple. ![]() Transfers of other major assets could be challenged as well. The common law at the time, for example, had strong prohibitions on the transfer of real estate without a spouse’s assent, in part to ensure that a surviving widow would not wake up the day after her husband’s death to find herself homeless or penniless. In the face of a spouse who sought to disinherit his or her surviving marital partner, society had imposed robust obstacles. And, indeed, they once were at a time when a decedent’s assets usually passed exclusively through probate or were otherwise owned in tenancy by the entirety and thus passed automatically to a surviving widow or widower. Without explicit mention in a will, trust, or beneficiary designation, what are a surviving spouse’s rights at law to a deceased spouse’s estate? Many people seem to think those rights are substantial. ![]() This article examines the breadth and extent of default spousal rights in Missouri in the absence of an express and formal reservation of benefits for a surviving spouse. Although there are safeguards for a surviving spouse built into both state and federal law, this patchwork of protections is far from the financial bulwark that the law once provided or that many imagine today. ![]()
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