Spousal Elective Share Requirements in Missouri

At a glance

Requirements one by one

Governing law and system

Missouri is a will-election state, but its calculation is not merely a fraction of the probate inventory. Section 474.163 adds specified property derived by the spouse from the decedent to the estate used for the calculation, then offsets that same spouse-derived property against the computed share.

Eligible spouse and who may elect

Under § 474.200, the right belongs personally to the surviving spouse and cannot be transferred or exercised after the spouse's death. For a disabled or minor spouse, a guardian ad litem or conservator may elect with court approval, and the court may order that representative to elect on an interested person's application.

Section 474.140 bars inheritance and statutory allowances for specified misconduct, including a year of unjustified abandonment immediately before death or continuous adultery, unless the spouses voluntarily reconcile and resume cohabitation.

Share amount and marriage length

The fraction depends on descendants, not marriage duration. If the testator left no lineal descendants, the spouse receives one-half of the estate subject to claims. If lineal descendants survive, the fraction is one-third.

Estate base and nonprobate transfers

The calculation begins with money and property owned by the decedent at death. It then adds property derived by the spouse outside testate or intestate succession. Section 474.163 expressly includes spouse interests in lifetime trusts, appointed property, life-insurance proceeds attributable to decedent- paid premiums, annuity value, pensions and retirement benefits other than Social Security, out-of-state community-property rights, and specified survivorship or life interests.

This is not a general pullback of every transfer to other people. Section 474.150 separately reaches a gift made in fraud of the spouse's marital rights; the spouse may recover it from the donee or an undercompensated taker and apply it to the share.

Deductions, exclusions, and valuation

Section 474.163 subtracts funeral and administration expenses, exempt property, family allowance, and enforceable claims before applying the fraction. The spouse-derived property is then added to the calculation base and credited against the resulting share.

Spouse-owned property is valued at death. Property previously transferred by the spouse is valued when the transfer became irrevocable or at death, whichever came first. Predeath income from included property is excluded. The statute presumes spouse-owned or spouse-transferred property came from the decedent unless the spouse proves another source.

For example, assume the decedent-owned estate after deductions is $500,000 and the spouse received $200,000 of included insurance. With descendants, the calculation is one-third of $700,000, or $233,333, followed by the $200,000 credit. The remaining payable share is about $33,333 before any homestead offset.

Deadline, extensions, and withdrawal

Under § 474.180, Missouri ties the election to the will-contest period. The contest period ends on the later of six months after probate or rejection of the will and six months after first publication of notice granting estate letters. The election is due ten days after that later date.

If qualifying litigation is pending when the ordinary election period ends, the right remains open until 90 days after final determination. Section 474.163 also permits rescission if the completed statutory calculation proves less advantageous than the will provision.

Filing, service, and court procedure

The election must be written, signed, acknowledged, and filed with the court clerk. Section 474.190 does not prescribe a verification, attachment package, or service certificate.

The clerk must mail the spouse notice of the election right within one month after the will is admitted to probate. Missing clerk notice or nonreceipt does not extend the filing deadline.

Waiver and agreement requirements

The right may be waived before or after marriage by a signed written contract, agreement, or waiver. Section 474.220 requires full disclosure of the nature and extent of the right and fair consideration under all the circumstances. The waiver may be filed in the same manner as an election.

Payment sources and recipient liability

Property derived by the spouse is a credit, but § 474.163 expressly says the spouse need not refund that property or its value to the estate. If a gift to someone else was made in fraud of marital rights, § 474.150 allows recovery from the donee or a person who took from the decedent without adequate consideration, to the extent needed for the spouse's share.

Effect of election and other spousal rights

The spouse takes the statutory amount by descent as a modified share and takes nothing under the will. If the will created benefits that would arise at the spouse's later death, the election generally treats the spouse as having predeceased the testator for those benefits unless the will says otherwise.

Exempt property and the family support allowance are additional to the elective share. The homestead allowance is not replaced by the election, but its amount is offset against the share.

What trips people up

• Nonprobate spouse benefits are not simply ignored. They can be added to the calculation and then credited against the spouse's share.
• The deadline is not six months from probate. It is ten days after the later six-month will-contest period, which can run from first publication of letters.
• Clerk notice does not protect a late filer. Failure to send or receive the notice does not change the statutory clock.
• Homestead and family allowance receive different treatment. Family allowance is additional; homestead is offset.

Common questions

Can the spouse rescind after seeing the calculation?

Yes, if the § 474.163 computation shows the elective share will be less advantageous than the provision made for the spouse by the will.

Does the spouse have to return insurance or trust property used as a credit?

No. Section 474.163 says the spouse-derived property is offset against the share, but the spouse is not required to refund the property or its value to the estate.

What if the decedent gave property away to defeat the spouse's rights?

Section 474.150 lets the spouse elect to treat a fraudulent gift as a testamentary disposition and recover it from the donee or an undercompensated taker for application to the spouse's share.

Statutes and sources

• Mo. Rev. Stat. §§ 474.140 and 474.150 — misconduct bar and recovery of gifts in fraud of marital rights. Official § 474.140 and official § 474.150 (accessed 2026-08-02).
• Mo. Rev. Stat. § 474.160 — one-half/one-third fractions, modified descent, no will share, future-interest effect, and allowance treatment. Official text (accessed 2026-08-02).
• Mo. Rev. Stat. § 474.163 — estate definition, spouse-derived property, valuation, credit, rescission, and no-refund rule. Official text (accessed 2026-08-02).
• Mo. Rev. Stat. §§ 474.170 and 474.180; § 473.083.1 — clerk notice, election deadline, litigation extension, and the underlying will-contest period. Official § 474.170, official § 474.180, and official § 473.083 (accessed 2026-08-02).
• Mo. Rev. Stat. §§ 474.190 and 474.200 — acknowledged filing and who may elect. Official § 474.190 and official § 474.200 (accessed 2026-08-02).
• Mo. Rev. Stat. § 474.220 — waiver writing, signature, disclosure, and fair consideration. Official text (accessed 2026-08-02).