Estate Litigation re: Analyzing Transfers in Fraud of Marital Rights

Normally, and subject to the existence of any estate planning documents, a surviving spouse is entitled to a significant portion of a deceased spouse’s estate. The amount which the surviving spouse receives from a default intestate distribution (i.e., one when there is no will or estate plan in place) will largely depend on if there are children born of the marriage or if the parties have other children. Missouri has developed a claim which permits a surviving spouse to “claw back” transfers/gifts/property dispositions made by a deceased spouse in fraud of the marital inheritance rights of the surviving spouse.
Although these types of claims are rarely invoked, the principal issue is the intent of the transferring/deceased spouse. Matter of Estate of LaGarce, 532 S.W.2d 511, 515 (Mo. Ct. App. 1975). Did the deceased spouse make transfers with the intent to defeat the surviving spouse’s inheritance rights? There is no black and white test or set of elements for the claim. Instead, the Court/jury is to consider all the facts and circumstances in the case. Prior cases have articulated a number of factors or guidelines as indicative of an intent to defraud a spouse of marital inheritance rights: (1) a lack of consideration for the transfer, (2) retention of control by transferor-spouse over the asset(s) in question, (3) a transfer of disproportionately high value when compared to the transferor’s total estate, (4) lack of open and frank disclosure by the transferor-spouse to the surviving spouse about the transfer, and (5) contemplation by the transferor-spouse of his/her imminent death. Nelson v. Nelson, 512 S.W.2d 455, 459-63 (Mo. Ct. App. 1974). It is important to recognize that these are guidelines for consideration. Not all of these have to be present. 
Courts have gone to great lengths to explain the rationale underlying this claim: 
“The marital relation involves the most unlimited trust and confidence. The conduct of each spouse enters into the life of the other with its gifts of comfort or burdens of misery. Others may deal at arm’s length, but they deal upon the standpoint of unity. The law imposes upon them no duty of suspicion or distrust, but they may hang their faith upon the mutual honesty which the nature of the relation necessarily implies. To safeguard their unity of interest is the object of the laws we are now considering. It was to destroy this unity that the conveyances in issue were made.” Nelson v. Nelson, 512 S.W.2d 455, (Mo. Ct. App. 1974). 
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