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Omitted Spouse, Non-probate Transfer

Part of the reason that probate litigation is complex is because there are procedural and substantive differences in how will, trust, joint ownership and non-probate transfer disputes are handled — even though these devices are often used by individuals interchangeably.

With wills, pursuant to ยง 474.235, RSMo an “omitted spouse” is granted the right to receive the same share of a deceased spouse’s estate that he or she would have received if the deceased spouse left no will. Pulley v. Short, 261 S.W.3d 701, 705 (Mo. Ct. App. 2008). In other words, if there is an outdated will (i.e., one created before a marriage) that does not leave anything to the spouse, or if there is a will in which it is not explicitly clear that nothing is left to the spouse on purpose, then the law presumes that this is a mistake and the surviving spouse may recover his or her intestate share of the estate. This law is intended to combat unintentional disinheritance of a spouse.

Confusingly, this does not apply to non-probate transfers (e.g., transfer on death, payable on death designations). Section 461.059, RSMo provides that “[n]o law intended to protect a spouse or child from unintentional disinheritance by the will of a testator shall apply to a nonprobate transfer.” Therefore, a surviving spouse would not likely prevail on an “omitted spouse” claim to recover an interest in a non-probate transfer made by a spouse that is made for some other individual’s benefit. In such a situation, however, the spouse may be able to recover on a transfer in fraud of martial rights claim.

Contact with questions.