Can I do anything if I've been written out of a will?

By
Vince Taormina
on
March 1, 2021

Talk with an estate planning lawyer like Vince Taormina to find out what your options are if you were left out of someone's Will or Trust.

As an estate planning attorney, I have seen many instances where my clients choose to omit someone from their Will.  It can be for various reasons.  Perhaps they and their children do not get along; perhaps their children have indicated that they do not want to inherit from their parents; or perhaps they simply forgot.  In the event that someone was not included in an estate plan, particularly someone who was related to the individual who made the estate plan, the State of Missouri does allow such omitted individuals to attempt to recover as if they were originally part of the Will in the first place.

There are three different scenarios in which this may come about.  Two of the scenarios deal with spouses of the Decedent (i.e. the person who died) while the last deals with the children of the Decedent.  Let’s look at spousal scenarios covered by Missouri statute.

  1. Omitted Spouses and Elective Share

There are two different scenarios that may come into play here.  The first is the scenario described above: the Omitted Spouse.  Under RSMo. §474.235, an Omitted Spouse is entitled to receive a distribution from the Decedent’s Estate.  In fact, she shall receive the same share of the Estate as if the Testator died Intestate.  This means that your client’s angry wife will receive either the entirety of the Testator’s Estate if they had no children,$20,000 plus ½ of the Estate if they had children together, and ½ of the Estate if they had children from prior relationships.

The second possible scenario is where the Testator does leave his spouse a portion of his Estate, but that portion is not satisfactory and is less than she believes herself to be entitled to.  This scenario is called the Elective Share scenario. Here, the spouse can elect to “take against the Will” under RSMo. §474.160 to receive a greater proportion of the Testator’s Estate.  If the spouse decides to do this and fails, however, she forfeits her rights to the portion of the Estate which the Testator left her.  Electing against the Will, therefore, is an all-or-nothing scenario. In most cases, the surviving spouse is willing to take that risk because, under the terms of the statute, she could be entitled to a lot more than the share left to her by the Testator.

When the surviving spouse elects to take against the Will, she receives ½ of the Testator’s Estate, plus an additional allowance, if the Testator had no children, and 1/3 of the Estate if the Testator had children.

  1. Omitted Children

Missouri also protects Omitted Children.  Under RSMo. § 474.240,if a Testator fails to provide for any of his children, born or unborn, the Omitted Child receives a share equal in value to that which he or she would have received if the Testator died Intestate. If, however, the omission appears to be intentional, or if the Testator transferred property to the Omitted Child outside of the Will, then the Omitted Child does not have a right to receive a portion of the Testator’s Estate under RSMo. § 474.240.

  1. Example

Abraham and Brenda hired an Estate Planning Attorney to write their Wills in 2005.  Although Missouri does not allow for joint Wills, Abraham’s and Brenda’s Wills are nearly identical.  Each state that the survivor of them will receive 100% of the Decedent’s Estate. Abraham and Brenda have no children.

In 2012, Abraham begins an affair with Clarissa, a woman 25 years his junior.  In 2013, Abraham told Clarissa that he wanted to marry her, but that he needed to divorce Brenda first.  Abraham, knowing that his divorce might take some time, called another Estate Planning Attorney and told him to re-draft his Will so that Clarissa would receive 100% of his Estate.  Believing that Abraham’s wife was dead, the new Estate Planning Attorney did as Abraham asked.  Abraham signed the re-drafted Will the very next day.

As he exited the Attorney’s office, Abraham had a massive heart attack and died on the spot.  He never got around to filing or divorce, nor filing for legal separation from Brenda.  In fact, Brenda did not even know that Abraham was contemplating doing so!

A month after Abraham’s death, Brenda opened a Probate action.  The new Estate Planning Attorney learned of the Probate action and came forward, due to ethical obligations, to present the revised Will which Abraham executed moments before his death.  Brenda’s grief turned into justified rage.  In the course of a few minutes, she discovered not only that Abraham was having an affair, but also that he wrote her out of his Will entirely and gave everything to his mistress, the lovely and vivacious Clarissa.

Although Abraham’s new Will was valid, Brenda consulted another attorney to discuss her options.  The attorney told her that she was considered an Omitted Spouse and was thus entitled to receive 100% of Abraham’s Estate despite being completely written out of the Will.  Brenda filed a motion in court and the court granted her motion.

The court reasoned that although Abraham told Clarissa that he loved her and that he intended to divorce Brenda, Abraham never initiated divorce proceedings or sought legal separation from Brenda.  Brenda, therefore, remained Abraham’s wife.  She was thus entitled to Abraham’s entire Estate under RSMo. §§ 474.010 and 474.235 since neither she nor Abraham had children.  In the end, the law saved Brenda who since she received 100% of the Estate.

Conclusion

Most people do not have to worry about being excluded from their loved one’s estate plan.  But sometimes mistakes do happen, and they are kept out of the Will or Trust crafted by their loved one’s estate planning attorney.  Luckily, Missouri allows such omitted individuals to recover and potentially inherit property from the Will or Trust crafted by their loved one’s estate planning attorney.

If you are interested in learning more about omitted spouses and children, or if you wish to craft an estate plan that best fits you and your family’s needs, please contact The Taormina Firm to see which estate planning options you have to prevent the difficulties that could be presented with omitting individuals from your estate planning documents.  For your free consultation with an estate planning attorney at The Taormina Firm, please give us a call any time.