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.
Notes of Decisions
Cited in
54
cases, 1957–2019 · leading case:
Owen v. Riffie, 323 S.W.2d 765 (Mo. 1959).
Owen v. Riffie, 323 S.W.2d 765 (Mo. 1959).
· cites it 30× “On March 12, 1957, respondent, acting under the provisions of section 474.160, filed her election to take against the will and, on April 17, 1957, acting under the provisions of section 474.”
Brug v. Mfrs. Bank & Trust Co., 461 S.W.2d 269 (Mo. 1970).
· cites it 20× “, [1] and in admitting in evidence for the jury's consideration the statute relating to an election by a surviving spouse to take against a will, § 474.160, RSMo 1959, V.A. M.S. [2] Appellant contends that the statutes pertaining to the devolution of property in event of…”
Jones v. Jones, 376 S.W.2d 210 (Mo. 1964).
· cites it 19× “252, Section 474.160 RSMo 1955 Supp.) : “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…”
Wilkinson v. Brune, 682 S.W.2d 107 (Mo. Ct. App. 1984).
· cites it 11× “Pursuant to § 474.160 RSMo. 1978, Irvin’s wife, Emma Mae Wilkinson, renounced the will and elected to take her statutory share of the estate rather than the one-third (Vs) Irvin had devised to her.”
White v. Mulvania, 575 S.W.2d 184 (Mo. 1978).
· cites it 4× “§ 474.160, RSMo 1969. [8] The petition alleges that Lovejoy was appointed guardian of the person and estate of the children and given their custody, facts which we must take as true in our determination of the sufficiency of the petition.”
In Re the Est. of Hough, 457 S.W.2d 687 (Mo. 1970).
· cites it 6× “In onr view, as an analogy and as a further consideration regarding the issue herein, and as a source of aid in our effort to construe, having a bearing on the whole context of the matter here under consideration, as related to the question of a surviving spouse who renounces…”
In Re Est. of Wahlin, 505 S.W.2d 99 (Mo. Ct. App. 1973).
· cites it 5× “In Jones the surviving widow renounced her deceased husband’s will and elected to take the statutory share provided for in Section 474.160, RSMo 1955 Supp., to-wit: “one-half of the estate if there are no lineal descendants of the testator; or, if there are lineal descendants of…”
Lorch v. Mercantile Trust Co. Nat. Ass'n, 651 S.W.2d 540 (Mo. Ct. App. 1983).
· cites it 6× “Respondent elected to take a statutory share of the estate rather than to take under the provisions of her husband’s will, § 474.160 RSMo.1978. She then brought this action seeking a declaratory judgment that she could also receive the income from the trust during her lifetime…”
Roberts v. Est. of Roberts, 664 S.W.2d 634 (Mo. Ct. App. 1984).
· cites it 4× “1982, and his election to take against the will, § 474.160, RSMo Supp.1982. The personal representative, through her attorney, opposed these claims of Mr.”
In Re Est. of Danforth, 705 S.W.2d 609 (Mo. Ct. App. 1986).
· cites it 3× “§ 474.160. Dr. Dan-forth’s children filed a motion “in opposition” and “objecting” to such election and prayed for an order and judgment denying Loretta inheritance, etc.”
Est. of Murphy, 661 S.W.2d 657 (Mo. Ct. App. 1983).
· cites it 4× “See § 474.160, RSMo 1978. Respondents, his children by a prior marriage and beneficiaries of the will, contended that she had waived her right to so elect by a written agreement signed eleven days following her marriage to Lyle Murphy.”
— Mo. Rev. Stat. § 474.160(1) — 1 case
Wilkinson v. Brune, 682 S.W.2d 107 (Mo. Ct. App. 1984).
“Pursuant to § 474.160 RSMo. 1978, Irvin’s wife, Emma Mae Wilkinson, renounced the will and elected to take her statutory share of the estate rather than the one-third (Vs) Irvin had devised to her.”
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