Section 8.48 Fraudulent Transfers

• Library: Estate Administration 2014 Supp

B. (§8.48) Fraudulent Transfers

The right of a married person to convey real or personal property during the married person’s lifetime, free of a spouse’s claim to marital rights, is controlled by the provisions of § 474.150, RSMo 2000. Section 474.150.1 states that:

Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse . . . shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse’s share . . . .

A gift that may be set aside as in fraud of marital rights is one made by a person with the intent and purpose of defeating the spouse’s marital rights. McDonald v. McDonald, 814 S.W.2d 939, 945 (Mo. App. S.D. 1991). “The cause of action to attack a conveyance as being in fraud of marital rights is vested in and must be asserted by a surviving spouse.” Id. at 946. It is the transferring spouse’s intent at the time of the transfer that controls in determining whether a transfer is in fraud of marital rights. Id.

Elements indicative of intent to defraud a spouse include the following:

· Lack of consideration for the transfer

· Retention of control by the transferor spouse

· Whether the amount of the transfer is disproportionate compared to the value of the transferor spouse’s total estate

· Whether the transferor spouse

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