Jessie Ann Olsen and Joseph Olsen were married on March 20, 2004. After only a few months of marriage, Husband filed a petition for dissolution of marriage. Six days later, the parties met at the offices of an attorney and exercised a “Separation Agreement and Property Settlement” in contemplation of divorce. The agreement distributed both marital and non-marital property and debt, but stated nothing regarding a release of claims against the other party nor did it specifically waive a right to inheritance. Before the marriage was dissolved, Husband was killed in a motor vehicle accident. The trial court refused to distribute any portion of the deceased’s estate to Wife, reasoning that the Separation Agreement was a fully executed post-nuptial agreement and that the court’s “inherent power to adjust equity between the parties…to meet demands of justice” required that the estate instead be distributed to the decedent’s two daughters from a previous marriage.
Whether an agreement is classified as a post-nuptial agreement or an executory separation agreement, any relinquishment of rights of inheritance must be explicit. In the absence of either a dissolution decree or a properly and fully executed waiver of marital rights, neither the act of separating, nor the intention to dissolve the marriage, nor the pendency of a dissolution can operate to sever the marital rights of a party, irregardless of the court’s sense of equities and justice.
Marital rights of inheritance and the relinquishment of those rights are recognized and governed by statute in Missouri. One may waive and release such rights, but only by a written agreement that is in compliance with Section 474.120. In spite of this statutory language the trial court believed that equity and fairness would be best served by a ruling against the Wife, presumably because the marriage lasted only a few months and the decedent had two daughters. The court in seeking to find a waiver of marital rights, decided that the “separation agreement” between the parties was not merely an executory separation agreement, but was also a valid and fully executed post-nuptial agreement. The trial court could not find an express waiver of marital rights in the agreement and thus had to rest its ruling on the equities and its sense of justice. No matter how the agreement is classified it failed to expressly waive any marital rights, and did no more than settle certain property rights between the parties. As such it fails to meet the requirement for waiver under §474.120 and can not be read to release the Appellant from her right to inheritance no matter the trial courts feeling of equity on her receipt of such property.