Can a surviving spouse claim an elective share in Missouri?

Full question:

My friend's husband passed away recently. He left nothing to her in his will. He bequeathed all his properties to his son and daughter. Is she entitled to any of her husband's property?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Missouri

Answer:

Yes, she is entitled to receive a share of her husband's property. In Missouri, a surviving spouse has right to elect against the will. Accordingly, if the decedent left no living descendants, a surviving spouse may receive 1/2 of the estate. But, if the decedent left descendants, the spouse is entitled to1/3 of the estate subject to payment of claims.
Since, here, the decedent left his son and daughter, the surviving spouse may receive 1/3 of the property subject to payment of claims. Additionally, she receives exempt property and a 1-year support allowance. The non-probate property like trusts, insurance, retirement plans, and jointly held property will be counted when computing this share. She must file the election within 10 days after the time expires for contesting a Will or 90 days after final determination of related litigation.

You can have a look at the relevant law in this regard below:

§ 474.160 R.S.Mo.
Election by surviving spouse to take against will, effect


1. When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated:
     (1) The surviving spouse, upon election to take against the will, shall receive in addition to exempt property and the allowance under section 474.260 one-half of the estate, subject to the payment of claims, if there are no lineal descendants of the testator; or, if there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate subject to the payment of claims;
     (2) When a surviving spouse elects to take against the will he shall be deemed to take by descent, as a modified share, such part of the estate as comes to him under the provisions of this section, and shall take nothing under the will;
     (3) Whenever there is an effective election to take against a will which provides for benefits to accrue upon the death of the surviving spouse, the election has the same effect as to the benefits as if the surviving spouse had predeceased the testator, unless the will otherwise provides.
2. The rights of the surviving spouse under this section are not given in lieu of the homestead allowance under section 474.290, but any homestead allowance made to the surviving spouse shall be offset against the share taken under this section.
§ 474.163 R.S.Mo.
Valuation of estate, how determined


1. For the purposes of section 474.160, the estate consists of all money and property owned by the decedent at his death, reduced by funeral and administration expenses, exempt property, family allowance and enforceable claims, and increased by the aggregate value of all money and property derived by the surviving spouse from the decedent by any means other than testate or intestate succession, exempt property or family allowance without a full consideration in money or money's worth. The aggregate value of money and property so derived by the surviving spouse from the decedent shall be offset against the elective share given by section 474.160.
2. Property derived from the decedent includes, but is not limited to:
     (1) Any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime;
     (2) Any property appointed to the spouse by the decedent's exercise of a general or special power of appointment also exercisable in favor of persons other than the spouse;
     (3) Any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him;
     (4) Any lump sum immediately payable, and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant, attributable to premiums paid by him;
     (5) The commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent; and
     (6) The value of the share of the surviving spouse resulting from rights in community property in any other state formerly owned with the decedent.
Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
3. When immediately before the decedent's death the surviving spouse was a cotenant or remainderman with respect to money, property, a trust fund or an account in a bank or other financial institution and, incident to such death, the surviving spouse became the sole owner thereof or the owner of a life interest therein, the whole value of such sole ownership or life interest shall be deemed to have been received from the decedent, except as to the proportion of such value, if any, derived from contributions toward the acquisition, establishment or creation of the money, property, fund or account made by the surviving spouse or ascendant or collateral blood relatives of the surviving spouse, other than the decedent.
4. Property owned by the surviving spouse at the decedent's death is valued as of the date of death. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurred first. Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.
5. Property owned by the surviving spouse as of the decedent's death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent, except to the extent that the surviving spouse establishes that it was derived from another source.
6. If it appears that the elective share given by section 474.160, as computed in accordance with this section, will be less advantageous to the surviving spouse than the provision made for that spouse by the will, the surviving spouse may rescind the election to take against the will.
7. Nothing in this section shall be deemed to require the surviving spouse to refund to the estate money or property derived from the decedent or its value.
§ 474.180 R.S.Mo.  
Time for making of election


The election by a surviving spouse to take the share herein provided may be made at any time within ten days after the expiration of the time limited for contesting the will of decedent, except that if, at the expiration of the period for making the election, litigation is pending to test the validity or to determine the effect or construction of the will, or to determine the existence of issue surviving the decedent, or to determine any other matter of law or fact which would affect the amount of the share to be received by the surviving spouse, the right of the surviving spouse to make an election shall not be barred until the expiration of ninety days after the final determination of the litigation.
Mo. Ann. Stat. § 474.170
474.170. Notice of right to elect
 
The clerk of the court, after the will of a married person is admitted to probate, shall, within one month thereafter, mail by ordinary mail a written notice, directed to the testator's surviving spouse at his last known residence address, informing him that a written election must be filed by or on behalf of the surviving spouse in order to take against the will, within ten days after the expiration of the time limited for contesting the will of the decedent, unless the time is extended pursuant to law. Failure of the clerk to mail or of any surviving spouse to receive the notice herein required does not affect the time for making an election as prescribed by section 474.180. If the court is informed that a surviving spouse has been adjudicated a disabled or incapacitated person but has no guardian or conservator the notice need not be given but the court may appoint a guardian ad litem to make the election.
 
Mo. Ann. Stat. § 474.200
474.200. Right of election personal to surviving spouse
 
The right of election of the surviving spouse is personal to him. It is not transferable and cannot be exercised after his death; but if the surviving spouse is disabled or a minor, his guardian ad litem or conservator may elect for him with the approval of the court or, on application of an interested person, the court may order his guardian ad litem or conservator to elect for him.
 
Mo. Ann. Stat. § 474.220 (West)
474.220. Waiver of right to elect
 
The right of election of a surviving spouse hereinbefore given may be waived before or after marriage by a written contract, agreement or waiver signed by the party waiving the right of election, after full disclosure of the nature and extent of the right, if the thing or the promise given to the waiving party is a fair consideration under all the circumstances. This written contract, agreement or waiver may be filed in the same manner as hereinbefore provided for the filing of an election.
 
Mo. Ann. Stat. § 474.230
474.230. Effect of failure to elect to take against will
 
When a surviving spouse makes no election to take against the will, he shall receive the benefit of all provisions in his favor in the will, if any, and shall share as heir, in accordance with the provisions of sections 474.010 to 474.030, in any estate undisposed of by the will. By taking under the will or consenting thereto, he does not thereby waive his right to a homestead allowance, to exempt property or to an allowance under section 474.260 unless it clearly appears from the will that the provision therein made for him was intended to be in lieu of such rights or any of them.
 
Mo. Ann. Stat. § 474.235
474.235. Share of omitted spouse
 
1. If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.
2. In satisfying a share provided by this section, the devises made by the will abate as provided in section 473.620.
 
 
Mo. Ann. Stat. § 474.240
474.240. Share of omitted children, how determined
 
1. If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate, unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.
2. If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
3. An illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized that the child was his.
4. In satisfying a share provided in this section, the devises made by the will abate as provided in section 473.620.