SUPPORT DURING MARRIAGE. A husband or wife each has a mutual duty to support the other. Each spouse must first exhaust their own income and separate assets before the other spouse can be required to spend their separate assets or income. In this context, “separate assets” means assets that are not owned jointly with the other spouse and the separate income each spouse. The most common application of this duty is medical or long term care. If a spouse incurs medical or long term care expense that cannot be paid by the spouses own income or separate property, in which case the spouse with assets or income is liable to pay for such care. This obligation cannot be waived by a prenuptial or post nuptial agreement. Thus, if one spouse does not have sufficient income, assets or insurance to pay for those potential expenses, it is in the best interest of the other spouse to insure against that risk.
DIVISION OF PROPERTY IN THE EVENT OF A DISSOLUTION OF MARRIAGE. (Section § 452.330 RSMo) In the event of the dissolution of marriage, the court is required to divide all “marital property.” For this purpose only, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid written agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage or pursuant to, unless marital assets including labor, have contributed to such increases, and then only to the extent of such contributions.
All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property.
Property which would otherwise be non marital property will not become marital property solely because it may have become commingled with marital property. However, it is advisable not to co-mingle non marital property with marital property or to allow earned income or income from marital property to be used to pay off debts on non marital property. If you are concerned about maintaining property as “separate” property, you should consult with an attorney and develop a detailed plan to maintain its status as “separate” property.
MAINTENANCE (ALIMONY) IN THE EVENT OF A DISSOLUTION OF MARRIAGE
(Section 452.335 RSMo)
In the event of a divorce the court may order continued support for one spouse to another. This payment is known as “maintenance.”
…..the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
MARITAL RIGHTS IN THE ESTATE OF A DECEASED SPOUSE
Exempt property. (Section 474.250 RSMo)
The surviving spouse, or unmarried minor children of a decedent, are entitled absolutely to the following property of the estate without regard to its 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 and all household and kitchen furniture, appliances, utensils and implements. Such property will belong to the surviving spouse, if any, otherwise to the unmarried minor children in equal shares.
Homestead Allowance (Section 474.290 RSMo)
At any time after the return of the inventory, the court, on application of the surviving spouse or of the guardian, conservator, or person having custody of the persons of the unmarried minor children of a decedent, shall make an allowance to the surviving spouse or unmarried minor children of an amount not exceeding fifty percent of the value of the estate, exclusive of exempt property, and the allowance made under section 474.260, but in no case shall the allowance exceed fifteen thousand dollars….. The homestead allowance shall be offset against the share to which the surviving spouse or any minor child who receives it is entitled as a distributee of the estate, …
Thus, this allowance is not applicable if the spouse’s distribution from the estate is $30,000 or more after receiving the family allowance and exempt property.
Family Allowance (Section 474.260 RSMo)
In addition to the right to homestead allowance and exempt property, the decedent’s surviving spouse and minor children whom the decedent was obligated to support and the children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year.
Intestate Succession Rights. (Section 474.010 RSMo) If the deceased spouse left no last will and testament the spouse is said to have died “intestate.” In such cases a surviving spouse receives:
- The entire estate if there are no surviving children of the deceased spouse.
- If there are surviving children of the deceased spouse, all of whom are also children of the surviving spouse, the surviving spouse receives the first twenty thousand dollars in value of the intestate estate, and one-half of the balance of the intestate estate.
- If there are surviving children of the deceased spouse, one or more of which are not also children of the surviving spouse, the surviving spouse receives one-half of the balance of the intestate estate.
Rights of a Surviving Spouse to a Minimum Share of a Deceased Spouses Estate. Section 474.160 RSMO
In addition to the rights of a surviving spouse set forth above, a surviving spouse is entitled to a minimum share of the deceased spouses probate estate. If there are not surviving children of the deceased spouse, the surviving spouse must receive one-half of the estate. If there are surviving children, the spouse is entitled titled to one-third of the estate.
Property that is transferred or titled in a form that passes the property to a survivor may be brought back into the estate, for this purpose as “a transfer in fraud of marital rights.” Real estate transfers are presumed to be in fraud of marital rights unless the spouse has consented to the transfer or conveyance with full disclosure of the rights being waived. Transfers of personal property or naming beneficiaries at death may be a transfer in fraud of marital rights, but the burden of proof is on the surviving spouse. Naming a life insurance beneficiary other than the spouse is NOT a transfer in fraud of marital rights.
For the purposes of this rule, the estate consists of all money and property owned by the decedent at his death, and the value of all money and property passing from the deceased spouse (excluding life insurance) to others, including the surviving spouse. Money or property derived from the deceased spouse and received by the surviving spouse as a surviving joint tenant, as a beneficiary of an account or of life insurance, or by any other means, is credited against the survivor’s share.
If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will,(see “Intestate Succession Rights” above) unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.
POSTNUPTIAL AND PRENUPTIAL AGREEMENTS
Persons contemplating marriage can waive some or all of their marital rights. This is known as a “prenuptial” or “antenuptial” agreement.” Prenuptial agreements are usually enforceable if they are entered into “…freely, fairly, knowingly, understandingly, and in good faith with full disclosure,” and the agreement is not “unconscionable.” Factors which courts have considered relevant include the signatories’ access to independent counsel, the amount of time available to revise the agreement, the bargaining positions of each spouse in terms of age, sophistication, education, employment, and experience, and whether their assets were fully disclosed. There must be consideration for any agreement. Agreement to marry is usually sufficient consideration for an agreement entered into prior to the marriage.
Parties may also make agreements after marriage. These agreements are known as postnuptial agreements. They too are generally enforceable but if there is a substantial difference in wealth or income it may be more difficult to prove adequate consideration. Postnuptial an prenuptial waivers of inheritance rights are specifically authorized by Section 474.120 subject to the requirement of full disclosure of assets and fair consideration.