Election by surviving spouse to take against will, effect
When a married person dies with a will, the surviving spouse does not have to accept what the will says. The spouse can choose to 'take against the will' instead. If the spouse makes that choice, they get half the estate if there are no children or grandchildren of the deceased, or one-third if there are children or grandchildren. The spouse also keeps certain exempt property and a basic allowance, plus a homestead allowance — but the homestead allowance gets subtracted from the share. If the spouse takes against the will, they get nothing else from the will.
474.160. by to take against will, effect. — 1. When a married person dies as to any part of his , a is given to the surviving spouse solely under the limitations and conditions herein stated:
(1) The surviving spouse, upon , shall receive in addition to and the allowance under section 474.260 one-half of the estate, subject to the payment of , if there are no of the ; or, if there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate subject to the payment of claims;
(2) When a surviving spouse elects to he shall be to , as a , such part of the estate as comes to him under the of this section, and shall take nothing under the will;
(3) Whenever there is an effective election to take against a will which provides for benefits to upon the death of the surviving spouse, the election has the same effect as to the benefits as if the surviving spouse had the testator, unless the will otherwise provides.
2. The rights of the surviving spouse under this section are not given the under section 474.290, but any homestead allowance made to the surviving spouse shall be against the share taken under this section.
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Source & history notes
(L. 1955 p. 385 § 252, A.L. 1957 p. 829) (1984) In determining how the surviving spouse's election to take against the will affects the distribution of the rest of the estate when the testator has not specified what is to happen, the court held that the legislature did not intend for the abatement statute to apply to an election to take against the will. Wilkinson v. Brune (Mo.App.E.D.), 682 S.W.2d 107.
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