To prevail on a transfer in fraud of marital rights claim, a plaintiff/surviving spouse needs to show that the deceased spouse “gave away his [or her] property without consideration with the intent and purpose of defeating…marital rights.” Nelson v. Nelson, 512 S.W.2d 455, 459 (Mo. Ct. App. 1974).
Section 474.150.2, RSMo states that there is a presumption that there is a transfer in fraud of marital rights when a spouse conveys real estate without the express consent or joinder of the other spouse. Effective as of August 31, 2018, the Missouri legislature amended Section 474.150 to additionally state:
“Any conveyance of the property of the spouse of a disabled person is deemed not to be in fraud of the marital rights of the disabled person if the probate division of the circuit court authorizes the conservator of the disabled person to join in or assent to the conveyance after finding that it is not made in fraud of the marital rights. Any conveyance of the property of a minor or disabled person made by a conservator pursuant to an order of court is deemed not to be in fraud of the marital rights of the spouse of the protectee.”
Accordingly, the legislature has carved out an exception for transfers in fraud of marital rights claim by insulating claims by a spouse that an incapacitated spouse is improperly disposing of assets in a conservatorship. Contact with questions pertaining to probate litigation, conservatorships and/or transfer in fraud of marital rights claims.