Section 6.70 Transfers in Fraud of Marital Rights

• Library: Trusts and Powers 2013 Supp

2. (§6.70) Transfers in Fraud of Marital Rights

Section 474.150.1, RSMo 2000, provides that gifts made in fraud of a surviving spouse’s right to share in a deceased spouse’s estate “may be recovered from the donee . . . and applied to the payment of the [surviving] spouse’s share.” Furthermore, the statute presumes a fraudulent transfer when real property is
conveyed without the express consent of the surviving spouse. Section 474.150.2. Finally, “[t]he property referred to in § 474.150 is a property interest that can be conveyed by the spouse, but is not limited to property that would be marital property
upon dissolution [of the marriage].” McDonald v. McDonald,
814 S.W.2d 939, 948 (Mo. App. S.D. 1991). Although not a true trust contest, application of § 474.150 can have a similar effect and is frequently relied on by a surviving spouse to invalidate a trust, at least in part, to which a decedent spouse has transferred assets.

The benefits derived from § 474.150 are certainly not without limitation, and the practitioner should be mindful of the following considerations:

· The right conferred by the...