Section 474.160

Title XXXI TRUSTS AND ESTATES OF DECEDENTS AND PERSONS UNDER DISABILITY

Chapter 474

Effective - 28 Aug 1957   

  474.160.  Election by surviving spouse to take against will, effect. — 1.  When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated:

  (1)  The surviving spouse, upon election to take against the will, shall receive in addition to exempt property and the allowance under section 474.260 one-half of the estate, subject to the payment of claims, if there are no lineal descendants of the testator; 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 take against the will he shall be deemed to take by descent, as a modified share, such part of the estate as comes to him under the provisions 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 accrue upon the death of the surviving spouse, the election has the same effect as to the benefits as if the surviving spouse had predeceased the testator, unless the will otherwise provides.

  2.  The rights of the surviving spouse under this section are not given in lieu of the homestead allowance under section 474.290, but any homestead allowance made to the surviving spouse shall be offset against the share taken under this section.

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(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.