Missouri Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)

✓ Verified September 2026

Missouri Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Missouri answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Missouri law, verified as of September 2026.

Missouri Surviving Spouse Rights: At a Glance

Here are the Missouri facts that decide most Missouri surviving spouse rights claims:

Why the Will Cannot Disinherit a Spouse in Missouri

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Missouri uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Missouri surviving spouse rights fact that a grieving spouse most often learns too late.

The Missouri Elective Share

Missouri gives a surviving spouse the right to elect against the will under RSMo 474.160. If the decedent left lineal descendants, the electing spouse takes one-third of the estate subject to payment of claims; if there are no lineal descendants, the spouse takes one-half of the estate subject to payment of claims. This share is in addition to exempt property and the family (support) allowance under RSMo 474.260.

A spouse who elects is deemed to take by descent as a modified share and takes nothing under the will (RSMo 474.160.2).

The deadline: Under RSMo 474.180, the election may be made at any time within 10 days after the expiration of the time limited for contesting the decedent’s will. The will-contest period under RSMo 473.083 runs 6 months from the date the will is probated or rejected, or 6 months from first publication of notice of granting of letters, whichever is later.

If specified litigation over the will or estate is pending, the election period is extended to 90 days after final determination of that litigation (RSMo 474.180).

What counts: NO. Missouri has not adopted the Uniform Probate Code augmented estate.

Under RSMo 474.163 the elective base is money and property owned by the decedent at death, reduced by funeral and administration expenses, exempt property, family allowance and enforceable claims, and increased only by the value of property the surviving spouse received from the decedent by means other than testate or intestate succession, exempt property or family allowance without full consideration.

RSMo 461.059.1 states that laws protecting a spouse from unintentional disinheritance do not apply to nonprobate transfers, so trusts, joint accounts and beneficiary designations generally fall outside the base.

A separate remedy exists under RSMo 474.150 for gifts made in fraud of marital rights, which a spouse may elect to treat as testamentary and recover; conveyances of real estate made without the spouse’s joinder or written assent are presumed to be in fraud of marital rights unless the contrary is shown.

Community property: NO. Missouri is a separate-property (common law) state and has no automatic one-half community interest for the surviving spouse. Spousal protection comes instead from the election against the will under RSMo 474.160, the statutory allowances under RSMo 474.250, 474.260 and 474.290, and the omitted-spouse rule of RSMo 474.235.

Allowances the Spouse Gets on Top of the Will

Homestead: RSMo 474.290 provides a homestead allowance, not a right to the residence itself. The court sets apart to the surviving spouse (or unmarried minor children) an amount not exceeding 50 percent of the value of the estate, exclusive of exempt property and the RSMo 474.260 allowance, but in no case more than 15000.

It is in addition to exempt property and the support allowance and is exempt from all claims against the estate. If no application is filed within 10 days after the time for filing claims expires, the homestead allowance is deemed waived (RSMo 474.290).

Exempt property: RSMo 474.250 sets no dollar cap.

The surviving spouse (otherwise the unmarried minor children) is entitled absolutely, without regard to value, to the family bible and other books, one automobile or other passenger motor vehicle including a pickup truck with its means of propulsion, all wearing apparel of the family, all household electrical appliances, all household musical and other amusement instruments, and all household and kitchen furniture, appliances, utensils and implements.

Value: UNVERIFIED as a dollar figure because the statute states no maximum.

Family allowance: RSMo 474.260 provides a “reasonable allowance in money out of the estate” for maintenance of the surviving spouse and minor children the decedent was obligated to support, payable during the period of administration and lasting no longer than one year. The court may consider the previous standard of living, the condition of the estate, income and other assets available to the applicant, and the applicant’s expenses.

It is in addition to homestead allowance and exempt property and is not charged against a share passing by will, intestate succession or elective share unless the will provides otherwise.

Married After the Will Was Signed

Under RSMo 474.235, a spouse who married the testator after the will was executed and for whom the will makes no provision receives the same share of the estate the spouse would have received had the decedent died intestate.

That share is denied if it appears from the will that the omission was intentional, or that the testator provided for the spouse by a transfer outside the will with intent that it be in lieu of a testamentary provision, shown by the testator’s statements, the amount of the transfer, or other evidence. Devises abate to satisfy the share as provided in RSMo 473.620.

Waiver and Disqualification in Missouri

RSMo 474.220 allows the right of election to be waived before or after marriage by a written contract, agreement or waiver signed by the party waiving, made after full disclosure of the nature and extent of the right, and supported by a thing or promise that is fair consideration under all the circumstances.

RSMo 474.120 applies the parallel rule to intestate and other statutory rights, requiring written agreement after full disclosure of the nature and extent of the rights, including all property interests of the parties. Independent counsel is not made an express statutory requirement; you may want to review any agreement with a licensed Missouri attorney.

What forfeits the rights: RSMo 474.140 bars inheritance rights, homestead allowance, exempt property and any statutory allowances where a married person (1) voluntarily leaves the spouse and goes away and continues with an adulterer, (2) abandons the spouse without reasonable cause and continues to live separate and apart for one whole year next preceding death, or (3) dwells with another in a state of adultery continuously.

The bar does not apply if the parties voluntarily reconcile and resume cohabitation. “Abandonment” is not defined in the statute, so courts decide it case by case. A pending divorce that is not final does not by itself end the marriage or the spousal rights.

If there is no will: With no will, RSMo 474.010 gives the surviving spouse the entire intestate estate if the decedent left no descendants, the first 20000 plus one-half of the balance if all surviving descendants are also the spouse’s, and one-half if any surviving descendant is not the spouse’s. The Missouri dying-without-a-will guide linked below covers that in full.

Other Missouri rules: Missouri’s elective share is not a sliding scale by length of marriage; it is a flat one-third or one-half under RSMo 474.160 depending on whether lineal descendants survive. Dower and curtesy were abolished with the 1955 Probate Code, and RSMo 474.290 replaced the old homestead right with a capped cash allowance rather than a life estate in the home.

RSMo 474.163 lets a spouse rescind the election if the computed elective share proves less advantageous than the will’s provision. RSMo 474.150 preserves the fraud-on-marital-rights doctrine, including a presumption against real estate conveyed without the spouse’s written assent. Deadlines are short and interlocking — check with your state’s probate court or a licensed Missouri attorney.

Mistakes That Cost a Surviving Spouse in Missouri

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Missouri surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Missouri Surviving Spouse Rights

Claiming Missouri surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

Quick Answers: Missouri Surviving Spouse Rights

What are Missouri Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Missouri Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim Missouri Surviving Spouse Rights?

A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Missouri surviving spouse rights are lost.

Official Missouri Sources & Resources

• Missouri Probate Court: https://www.courts.mo.gov/page.jsp?id=662
• Missouri Elective Share Statute: https://revisor.mo.gov/main/OneSection.aspx?section=474.160
• Internal Revenue Service — Estate Tax: irs.gov
• Cornell Legal Information Institute: law.cornell.edu/wex

This Missouri guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Missouri Estate Guides

• Contest a Will in Missouri
• Missouri Medicaid Estate Recovery
• Dying Without a Will in Missouri
• Missouri Probate Process
• When a Spouse Died With Debt
• All State Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.