Estate administration laws have several different pitfalls which can vastly change a probate estate. One of the more interesting scenarios that can occur is when a surviving spouse of a decedent attempts to nullify a conveyance for being “in fraud of marital rights.” The right to attack a conveyance in fraud of marital rights was developed in case precedent, but the Missouri legislature codified the claim in Section 474.150, RSMo. In re Estate of Brown, 800 S.W.2d 137, 138 (Mo. Ct. App. 1990). The pertinent portions of that Section provide:
1. Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse’s share, as in case of his election to take against the will.
2. Any conveyance of real estate made by a married person at any time without the joinder or other written express assent of his spouse, made at any time, duly acknowledged, is deemed to be in fraud of the marital rights of his spouse, if the spouse becomes a surviving spouse, unless the contrary is shown.
A lot of the confusion surrounding the claim has to do with the use of the word “fraud.” The statute, however, simply adopts “fraud” as used in case precedent. Specifically, fraud in this context can be demonstrated by showing that a conveyance of a spouse’s property in his/her lifetime deprived the surviving spouse of that property at the time of estate administration. The voluntary conveyance may be set aside if it was done with the intent and purpose to defeat the surviving spouse’s marital rights. Wanstrath v. Kappel, 201 S.W.2d 327 (Mo. Ct. App. 1947).
Traditionally, the burden of proving the prohibited intent and purpose to defraud was upon the surviving spouse. Dillard v. Dillard, 266 S.W.2d 561, 563 (Mo. 1954). Note, however, that Missouri’s statute changes the analysis with respect to real estate in that a conveyance is presumptively fraudulent if done without the consent of both spouses. If a successful claim of fraud of marital rights can be proven, then the surviving spouse gets his or her elective share out of the fraudulently transferred property and the balance remaining will belong to the original transferee/donee
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