What About The Surviving Spouse's Rights?
A common misconception is that, upon death, all of an individual`s property passes directly to the surviving spouse. This is simply not the case. In Missouri, if a person dies without having left a will, the surviving spouse is entitled to receive onehalf (1/2) of the estate if the deceased is survived by children, and the first $20,000 from the estate if the surviving spouse is also the parent of all of the surviving children. This share is in addition to certain exempt property and other statutory allowances. The exempt property is that which the spouse or the unmarried minor children are entitled to receive absolutely, without regard to any provisions the deceased might have made for the disposition of other assets. The exempt property includes the family Bible, books, clothing, household appliances, furniture, one automobile, and the like. The support allowance is an award made to the surviving spouse for his or her maintenance (and that of the unmarried minor children) for a period of one year after the deceased`s death. The amount of the award is judged by the family`s previous standard of living.
On the other hand, in Missouri (even if an individual leaves a will) the spouse cannot be completely disinherited unless some form of contractual arrangement has been made before death. For example, a spouse is entitled to receive as his or her minimum share either onehalf (1/2) of the deceased`s property if there are not children or grandchildren, or onethird of the property if the deceased spouse is survived by children or grandchildren.
This participation in the deceased`s estate is subject to the claims of creditors, and is in addition to the survivor`s statutory allowances and exempt property as discussed above. However, in determining the statutory percentages, certain other property received by the survivor (such as life insurance, joint property and trust assets) must also be taken into account.
If the deceased leaves a will giving the spouse less than these percentages, the spouse may within a specified time elect to take against the will and thus receive the statutory share instead of the provisions made in the will. The probate division is required to notify the surviving spouse of this right of election shortly after the will is probated. Omitted spouses, or those who were married after the deceased`s will was executed, may claim an intestate share of the estate. In certain cases, similar provisions are also included for any children who might have been born after the will was executed.
The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.
Additional Estate Planning Articles
- What Is A Power Of Attorney?
- What Is A Durable Power Of Attorney?
- What About The Revocation Of A Durable Power Of Attorney?
- What Powers Are Granted By General Powers Of Attorney?
- Must I Sign A Power, And If I Do, Will It Be Followed?
- What Specific Cautions Must Be Made In Preparing And Granting Powers Of Attorney?
- What Is Probate?
- How Is Property Transferred At Death?
- What About The Rights Of Creditors And Collection Of Debts?
- What About Payment Of Death Taxes?
- What About Establishing Title To Real Estate?
- What Is Simplified Probate Administration?
- What Are Some Other Functions Of The Probate Division?
- What Is A Tenancy In Common?
- Will A Joint Tenancy Avoid Probate Expenses?
- Can A Revocable Living Trust Be Changed Or Revoked?
- Is A Revocable Living Trust An Adequate Substitute For A Will?
- Will A Revocable Living Trust Avoid Probate Expenses?
- What Are Some Of The Advantages Of A Revocable Living Trust?
- Is A General Durable Power Of Attorney Or A Living Will Still Needed?
- What Are Some Other Considerations In The Use Of A Revocable Living Trust?
- Who Can Advise You About A Revocable Living Trust?
- What Are Some Of The Disadvantages Of A Revocable Living Trust?
- Does The Revocable Living Trust Reduce Income Taxes Or Estate Taxes?
- Should I Use A Joint Account For Help In Writing Checks?
- May Safe Deposit Boxes Be Jointly Held?
- What Is A Guardian?
- What Is A Conservator?
- Who Can Be The Trustee?
- Who May Be Appointed Guardian And Conservator?
- What Does It Mean To Be Incapacitated Or Disabled?
- What Is The Legal Effect Of A Judicial Determination Of Incapacity Or Disability?
- How Are Guardianship And Conservatorship Proceedings Commenced?
- What Are The Duties Of A Guardian And A Conservator?
- Is The Conservator Or Guardian Personally Liable For The Debts Of The Protectee Or Ward?
- How Are Guardianship And Conservatorship Terminated?