Marital Rights in Missouri

Overview

Missouri requires the joinder or consent of the non-titled spouse for any conveyance or encumbrance of real property. In the case of a non-primary residence, which is covered by a marital rights statute, a separate consent form can be executed by the non-titled spouse. This should be done for each transaction rather than treated as a blanket waiver of the interest. For the primary residence, which is covered by a specific homestead law, the non-titled spouse must always join in the instrument.

The only main exception to these rules are that any purchase money deeds of trust that do not have future advance clauses do not require spousal joinder.

Sources

• MO Rev Stat § 474.110. - Dower and Curtesy Abolished
• MO Rev Stat § 474.150 (2017). - Marital Rights
• MO Rev Stat § 513.475. - Homestead Rights

Forms

WARNING: It is been common practice is Missouri for years to call a form a "Waiver of Marital Rights" and have language to the effect that a spouse is waiving their marital interest in a given piece of property. The common misconception is that this marital right can be waived and that it need only be done once. In fact, the statute does not allow the right to be waived and requires that the non-titled spouse consent or assent separately to each transaction that involves the property.

• Waiver and Assent Form - this in not an official form, but is commonly used. There should also be a statement in there that the property involved is not the primary residence of the person executing the document. If the property is the primary residence of the signer, then this form cannot be used and they must join in the DOT or other document itself.

Examination

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Curative

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Common Law Marriage

Common Law Marriage was ended in 1921 in Missouri and such marriages are considered null and void. Mo. Ann. Stat. § 451.040(4); Suddeth v. Hawkins, 202 S.W.2d 572, 576 (Mo. App. 1947). In theory any couples who satisfied the elements of common law marriage prior to that date could be considered as being married under Missouri law. Missouri courts will recognize the marriage of anyone who has a common law marriage under the laws of another jurisdiction. Doyle v. Doyle, 497 S.W.2d 846, 847 (Mo. App. 1973); McGrath v. McGrath, 387 S.W.2d 239 (Mo.App.1965); Preston v. Preston, 342 S.W.2d 956 (Mo.App.1961); Pittman v. Scullin Steel Company, 289 S.W.2d 57 (Mo.1956). That does not mean that a couple that resides in Missouri can obtain a common law marriage in another state and have it recognized as such. Hesington v. Hesington's Estate, 640 S.W.2d 824, 827 (Mo. Ct. App. 1982). Common law spouses would theoretically have the same marital rights as other married couples.

Common Law Rights

Curtesy and Dower have both been abolished in Missouri since 1955. MO Rev Stat § 474.110.

Community Property

N/A. Community Property has never existed in Missouri.

Homestead

In Missouri, the term homestead refers to the principal residence of the owner. There are no special filings to confirm or declare the existence of a homestead. The status of a property as a homestead exempts the property from attachment up to $15,000 except for causes of action existing at the time the homestead was acquired. The sale or voluntary encumbrance of the homestead cannot be done without the joinder of any non-titled spouse. MoRS § 513.475.

Prenuptial Agreements

Prenuptial or Ante-nuptial agreements, whether or not they have been recorded, are insufficient to be considered a waiver of any marital interests in real property.

Statutory Rights

Missouri recognizes statutory marital interests in real property for non-titled spouses including property that is not the primary residence of the non-titled spouse. These are referred to in the statutes as Marital Rights and in most cases require the joinder or waiver of marital rights of a non-titled spouse in any conveyance. MO Rev Stat § 474.150 (2017).

• A Non-Title Holding Spouse must execute any deed of conveyance or deed of trust. There is no civil union in Missouri.
• Non-Title holding spouse may waive spousal rights and thereafter not sign deed, mortgage or deed of trust.

A married individual can hold property in his/her name individually. However, a conveyance without the spouse's signature is presumed to be in fraud of marital rights. The marital right involved is a right of inheritance and can only be asserted by a surviving spouse. As a result, the Company requires that the deed conveying property held in the name of one spouse must also have the other spouse's signature in order to be insurable.

Exceptions

• Purchase Deeds of Trust do not require spousal signature. This can apply to multiple purchase money DOTs, but not to any that are future advance DOTs.
• Life Estates
• One Spouse to another

Cross-References

• Missouri
• Marital Rights
• Estates in Missouri
• Tenancies in Missouri