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Missouri Surviving Spouse Rights
Support GuideMissouri12 min read

Missouri Surviving Spouse Rights

Missouri surviving spouse rights: the elective share under RSMo 474.160, plus exempt property, the one-year support allowance, and the homestead allowance.

By Settled Editorial

Missouri stops a will from cutting a surviving spouse out of an estate. A will that leaves the spouse nothing cannot erase four rights: the elective share against the will, exempt property, a one-year support allowance, and the homestead allowance. Three of them add to whatever the spouse otherwise takes. These Missouri surviving spouse rights exist no matter what the will says, and each one carries its own statute and its own deadline.

This guide maps each right and how they combine. One of them, the elective share, applies only when there is a will. The other three apply whether or not the decedent left a will. When there is no will at all, the spouse's baseline share comes from intestacy, which the Missouri intestate succession guide works through. Estates run through the Probate Division of the Circuit Court for the county where the decedent lived, or the City of St. Louis.

Overview of a Surviving Spouse's Rights

Missouri gives a surviving spouse four distinct protections, each with its own statute:

  1. Elective share - a claim on one-third or one-half of the estate, taken against the will, under RSMo 474.160
  2. Exempt property - a fixed set of household items and one vehicle, set off with no dollar limit, under RSMo 474.250
  3. One-year support allowance - a reasonable maintenance allowance during administration, under RSMo 474.260
  4. Homestead allowance - up to half the estate after exempt property, capped at $15,000, under RSMo 474.290

The elective share only comes up when the decedent left a will and the spouse wants more than the will gives. The exempt property, the support allowance, and the homestead allowance apply in a will estate and a no-will estate alike.

The Elective Share Against a Will

When a spouse dies with a will that leaves the survivor less than the statute allows, the survivor can elect to take against the will. The right is set by RSMo 474.160. It exists so a will cannot disinherit a spouse.

How Much the Spouse Can Elect

The elective share turns on one fact: whether the decedent left lineal descendants, meaning children, grandchildren, and the lines below them.

Decedent leftElective share of the estate
No lineal descendantsOne-half
One or more lineal descendantsOne-third

Both shares are subject to the payment of the estate's claims, and both come in addition to the exempt property and the one-year support allowance under RSMo 474.260. Missouri does not use an augmented estate. The elective share is a fraction of the decedent's estate, then reduced by what the spouse already received from the decedent, which the next section explains.

The elective share reads differently against an intestate estate. If a decedent leaves no will and no descendants, the spouse already takes the whole estate under RSMo 474.010, so the one-half elective figure matters only when a will gives the spouse less than the statute would. Compare the two shares side by side in the Missouri intestate succession guide.

What Reduces the Elective Share

The elective share is not a clean one-third or one-half of everything. Under RSMo 474.163, the value of money and property the surviving spouse derives from the decedent is offset against the elective share. That reaches nonprobate transfers such as life insurance proceeds paid to the spouse, property held in joint tenancy with survivorship, payable-on-death and transfer-on-death accounts, and property in the decedent's revocable trust. A spouse who already received a large share of the decedent's wealth outside the will may find the elective share cut down or wiped out by this offset. Add up those transfers before treating the elective share as a set number.

The Deadline to Elect

The election is time-limited. Under RSMo 474.180, the surviving spouse must make the election within ten days after the period for contesting the will expires. A will contest runs for six months after the will is admitted to or rejected from probate, or six months after the first published notice of letters, whichever is later, under RSMo 473.083. So the ten-day election window opens once that six-month period ends. If litigation over the will's validity, its effect, or the existence of the decedent's issue is still pending when the period ends, the right to elect is not barred until ninety days after that litigation is finally decided. Miss the window and the right to elect against the will is lost, so a spouse weighing an election against a valid will should calendar the date early. The Missouri will requirements guide explains when a will is valid in the first place.

Exempt Property

The surviving spouse, or the decedent's unmarried minor children in equal shares when there is no spouse, is entitled absolutely to a fixed set of property under RSMo 474.250. The statute lists it by category and takes it without regard to value:

  • 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
  • all household and kitchen furniture, appliances, utensils, and implements

Missouri fixes no dollar cap on this set-off. It passes these categories of property to the spouse ahead of the estate's creditors and ahead of the rest of the distribution. A spouse who wants to know how creditors line up behind these protections can read the Missouri creditor claims guide. The Missouri exempt property guide details each category and how the set-off is claimed ahead of creditors and the rest of the distribution.

The One-Year Support Allowance

While the estate is being administered, the surviving spouse and the decedent's unmarried minor children can claim a reasonable allowance for their maintenance under RSMo 474.260. The Probate Division sets the amount. The judge weighs the family's previous standard of living, the condition of the estate, and the income, other assets, and expenses of the people who apply. Missouri fixes no flat dollar figure, so do not expect a set number.

The allowance may not run longer than one year, which is why practitioners call it the one-year support allowance. It can be paid as a lump sum or in periodic installments. It is exempt from all claims against the estate, and it does not reduce what the spouse or children take under the will unless the will provides otherwise. A claimant can select estate property in place of cash, up to the value of the allowance. The Missouri family allowance guide walks through the one-year support allowance and the homestead allowance together, including how unmarried minor children share them.

The Homestead Allowance

The homestead allowance goes to the surviving spouse, or to the decedent's unmarried minor children in equal shares when there is no spouse, under RSMo 474.290. Its value cannot exceed fifty percent of the estate, figured after the exempt property is taken out, and it is capped at $15,000. It comes in addition to the exempt property and the one-year support allowance.

The homestead allowance works differently from those two. It is offset against the share the spouse or child receives as a distributee of the estate, so it is not a pure bonus stacked on top. Here is the floor that protects a small share: if the distributive share is smaller than the allowance, the allowance is not reduced, so the recipient still receives the full homestead amount up to the cap. The homestead allowance is also exempt from all claims. A spouse or child who wants it must apply within ten days after the claims period expires, or the statute treats the allowance as waived.

How the Rights Fit Together

A worked example shows how these rights combine. Say a will leaves the surviving spouse $8,000, the decedent left two children of the marriage, and the estate holds $12,000 of household furniture and a paid-off car.

  • Exempt property. The spouse takes the furniture and the car under RSMo 474.250, set off by category with no dollar limit, on top of the $8,000 the will gives.
  • Support allowance. The spouse, and any unmarried minor children, can ask the Probate Division for a reasonable one-year support allowance under RSMo 474.260, also on top of the will's gift.
  • Homestead allowance. Capped at $15,000 and at half the estate after exempt property, it is charged against the spouse's distributive share under RSMo 474.290. If that share is smaller than the allowance, the spouse keeps the full homestead amount up to the cap.
  • Elective share. Because the decedent left descendants, the spouse can instead elect one-third of the estate against the will under RSMo 474.160, reduced by property the spouse already received from the decedent under RSMo 474.163. The spouse weighs one-third of the estate against the $8,000 the will gives, and the exempt property and support allowance stay on top either way.

The pattern: the exempt property and the support allowance add to whatever the spouse otherwise takes, the homestead allowance fills a gap up to its cap, and the elective share is a separate choice measured against the estate. A spouse facing a will that pays little should compare all four together before deciding whether to elect.

When There Is No Surviving Spouse

The allowances do not disappear when the spouse has already died. Under RSMo 474.250 and 474.290, the decedent's unmarried minor children take the exempt property and the homestead allowance in equal shares, and unmarried minor children can share the one-year support allowance under RSMo 474.260. The elective share is different. It belongs to a surviving spouse alone and is not available to children.

Waiver, Divorce, and Timing

A surviving spouse's rights are strong, but not absolute.

Waiver by agreement. A spouse can give up these rights by a valid marital agreement in some circumstances, such as a premarital contract. The requirements for a valid waiver are specific, so confirm them with a Missouri attorney before relying on one.

Divorce. A final divorce ends the marriage, so a former spouse is not a surviving spouse and has no election or allowance claim.

Timing. The election runs off the will-contest period under RSMo 474.180, and the homestead allowance must be applied for within ten days after the claims period ends under RSMo 474.290. Both dates arrive during administration, so calendar them early rather than late.

Frequently Asked Questions

Can my spouse disinherit me in Missouri?

Not entirely. Even a will that leaves you nothing cannot take away the elective share, one-third of the estate when the decedent left descendants and one-half when there are none, plus the exempt property, the one-year support allowance, and the homestead allowance under RSMo 474.160, 474.250, 474.260, and 474.290.

How much is the elective share in Missouri?

One-half of the estate when the decedent left no lineal descendants, and one-third when the decedent left descendants, subject to the estate's claims, under RSMo 474.160. The value of property you already received from your spouse outside the will is offset against it under RSMo 474.163.

How long do I have to elect against the will?

Ten days after the period for contesting the will expires, under RSMo 474.180. A will contest runs six months from probate or the first notice of letters, whichever is later, so the election window opens after that. Pending litigation over the will can extend the deadline.

Do the allowances reduce the elective share?

The exempt property and the one-year support allowance come in addition to the elective share. The homestead allowance is charged against your distributive share, but it is not cut below its own amount, so it acts as a floor rather than a reduction.

When to Bring in a Missouri Attorney

Some spousal claims are simple to read from the statute. Others need a licensed Missouri attorney, above all when:

  • the will leaves the spouse less than the elective share
  • the decedent left children from another relationship, which drops the elective share to one-third
  • the spouse received large nonprobate transfers that may offset the elective share under RSMo 474.163
  • the election deadline is close, or litigation over the will is pending
  • the estate is small and the homestead allowance floor decides how much the spouse keeps
  • the exempt property or the allowances are disputed among the family

This guide helps you organize the source-backed rights and the questions to ask. A licensed Missouri attorney can advise on rights, disputes, and the election decision for a specific estate. This is general information about Missouri estates, not advice for your situation. Whoever settles the estate still files through the Probate Division of the Circuit Court and follows the steps in the Missouri executor duties guide and the Missouri probate guide.

Related Guides

Sources:

It is not legal advice.

Information current as of July 17, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Missouri can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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