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Wills, Trusts: Omitted Spouse, Child(ren)

Missouri probate law is old-fashioned in many ways. A great example of this is the omitted child(ren) and omitted spouse rule codified in RSMo, 474.235-240.

The ideological underpinning of the laws are that families are inherently close and tight-knit. It would be inconceivable, then, that a family member — particularly a parent — would disinherit another member of his or her family. Imagine the following: you are married with three kids. You pass away and the Will you executed (which is offered for probate) leaves everything in equal shares to your Wife and two oldest children. Your oldest child does not receive anything under the Will. If the Will is simply silent as to the youngest child (who is over 18), then there is a strong chance that the Child can invoke the omitted child rule, thereby arguing that he or she was accidentally left out of the will and is thus entitled to a share under the Will that he or she would have been entitled to in an intestacy proceeding.

Missouri law similarly protects an omitted spouse under a Will. If you inadvertently failed to provide for your spouse under the Will, then the spouse could be entitled to an intestacy share.

How can you get around this restraint in Missouri probate law? The aforementioned statutes proscribe a few different ways; to-wit:

[The omitted child rule is in effect 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.

The same exceptions also exist under the omitted spouse rule.

Accordingly, there is almost something of a legal presumption that each person is going to leave to his or her spouse and children some portion of his or her estate. However, devising around this has to be done in a legally precise manner. There must usually be express statements in the Will stating that “I have three children. I am estranged to the youngest and it is my express intention that they be excluded from this Will and any inheritance.”

Because of this peculiar nuance in Missouri law, it is important to consult with an attorney if you are planning on making selective bequests/devises to family members in a Will or other Testamentary instrument.

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