1. For the purposes of section 474.160, the estate consists of all money and property owned by the decedent at his death, reduced by funeral and administration expenses, exempt property, family allowance and enforceable claims, and increased by the aggregate value of all money and property derived by the surviving spouse from the decedent by any means other than testate or intestate succession, exempt property or family allowance without a full consideration in money or money’s worth. The aggregate value of money and property so derived by the surviving spouse from the decedent shall be offset against the elective share given by section 474.160.

2. Property derived from the decedent includes, but is not limited to:

Ask a will, trust or estate question, get an answer ASAP!
Thousands of highly rated, verified estate & trust lawyers.
Click here to chat with a lawyer about your rights.

(1) Any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime;

(2) Any property appointed to the spouse by the decedent’s exercise of a general or special power of appointment also exercisable in favor of persons other than the spouse;

(3) Any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him;

(4) Any lump sum immediately payable, and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant, attributable to premiums paid by him;

(5) The commuted value of amounts payable after the decedent’s death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent; and

(6) The value of the share of the surviving spouse resulting from rights in community property in any other state formerly owned with the decedent.

—

–

Premiums paid by the decedent’s employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

3. When immediately before the decedent’s death the surviving spouse was a cotenant or remainderman with respect to money, property, a trust fund or an account in a bank or other financial institution and, incident to such death, the surviving spouse became the sole owner thereof or the owner of a life interest therein, the whole value of such sole ownership or life interest shall be deemed to have been received from the decedent, except as to the proportion of such value, if any, derived from contributions toward the acquisition, establishment or creation of the money, property, fund or account made by the surviving spouse or ascendant or collateral blood relatives of the surviving spouse, other than the decedent.

4. Property owned by the surviving spouse at the decedent’s death is valued as of the date of death. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedent’s death, whichever occurred first. Income earned by included property prior to the decedent’s death is not treated as property derived from the decedent.

5. Property owned by the surviving spouse as of the decedent’s death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent, except to the extent that the surviving spouse establishes that it was derived from another source.

6. If it appears that the elective share given by section 474.160, as computed in accordance with this section, will be less advantageous to the surviving spouse than the provision made for that spouse by the will, the surviving spouse may rescind the election to take against the will.

7. Nothing in this section shall be deemed to require the surviving spouse to refund to the estate money or property derived from the decedent or its value.