It’s tough enough to contemplate the traditional individual, family and financial changes of the process of divorce.  It’s even tougher to factor in the possibility of one’s own mortality during divorce proceedings, or thereafter.  But the consequences of failing to stay on top of these matters can be devastating to the family. Let’s take a look a Missouri laws in this regard, so you can consider the options with an attorney.

Under Missouri probate laws, a surviving spouse has certain minimum rights to a portion (or in some cases, all) of the deceased spouse’s estate.  

If the deceased left a will, the surviving spouse who receives less than the minimum share under the will can elect to take against the will and receive the minimum amount.  This minimum share is either one-third (1/3) of the estate, if the deceased left children or more remote descendants, e.g. grandchildren, or one half (1/2) of the estate, if there are no surviving descendants of the deceased.  

The estate, by the way, includes all property left to the surviving spouse by means other than probate, e.g. life insurance or a trust.  Hence if H leaves W, say, $10,000 via probate, out of an estate of $100,000, W could normally elect to take roughly $33,000, instead of $10,000 (1/3 x $100,000 = $33,000), assuming H left children.  However, if H also leaves W $110,000 in life insurance proceeds, W will receive $120,000 total, which is more than the minimum share of $70,000 ($110,000 estate + $100,000 life insurance, or $210,000, and $210,000 x 1/3 = $70,000).  The amount of the elective share is offset by the life insurance of $100,000, so W is better off taking the $10,000 bequest under the will and the $100,000 in life insurance.

If the deceased spouse dies without a will, then the surviving spouse takes under intestacy laws, which means the surviving spouse receives either the whole of the estate (if there are no descendants or parents of the deceased) or about one-half of the estate if the deceased left parents or surviving descendants.

Under Missouri laws, a spouse remains a spouse until a decree of divorce.  Hence the spouse retains all rights to an estate provided by law or under a will while the proceedings are pending.  This may not be a happy result if the current estate plan (or the law of intestacy) leaves everything to the surviving spouse, or a substantial portion.  Hence it is good practice, if not always done, to create a new estate plan leaving the spouse the minimum amount provided by law while the divorce is pending, i.e., generally either one-third or one-half of the estate, or some higher amount if desired.  Thereafter the estate plan can be amended, which may or may not include the ex-spouse.  

Norm Newmark

Norman donates much of his leisure time to charitable causes, including as secretary/board member of the National Kidney Foundation of Eastern Missouri and Metro East, Inc. and as secretary/board member and general counsel of Heat Up St Louis, Inc.