## Facts

- Elaine F. McKown and Larry R. McKown married in 1968.
- In 1995, the couple sought legal separation in Kansas through a separate-maintenance action.
- A Kansas court entered a decree of separate maintenance that incorporated the parties’ oral settlement agreement.
- The decree divided property between Elaine and Larry, setting certain assets to each spouse as that spouse’s “sole and separate property,” “free and clear” of any interest or claim of the other.
- After the decree, Elaine and Larry lived separate and apart, but they never divorced and remained legally married.
- In 2002, Larry executed a will that identified Elaine as his spouse but referenced the Kansas separate-maintenance agreement when explaining why he left his estate to his mother and, if she did not survive, to his sister.
- Larry died in 2007, and his will was admitted to probate in Missouri.
- Elaine filed in the Missouri probate case as Larry’s surviving spouse, seeking an elective share and statutory surviving-spouse allowances, including exempt property and the homestead allowance.
- The probate (circuit) court denied Elaine’s requests, reasoning that the Kansas decree and incorporated agreement had freed Larry’s property from Elaine’s interests.
- Elaine appealed to the Missouri Court of Appeals, Western District.

## Issues

1. Did the Kansas decree of separate maintenance (and the oral settlement incorporated into it) bar Elaine, as the surviving spouse, from claiming a Missouri elective share of Larry’s estate?
2. Did the same decree and settlement bar Elaine from claiming Missouri’s statutory exempt property allowance?
3. Did the same decree and settlement bar Elaine from claiming Missouri’s statutory homestead allowance?

## Decision

- The appellate court **reversed** the probate court’s judgment denying Elaine’s claims and **remanded** for further proceedings.
- The court held that a decree of separate maintenance does **not** dissolve the marriage; therefore, Elaine remained Larry’s **surviving spouse** at his death.
- The court held that the Kansas decree’s property-division language did **not** operate as a clear, death-related waiver of Elaine’s Missouri statutory rights, and it could not be treated as an automatic bar to her elective share and allowances.

## Legal Principles

- A decree of separate maintenance generally leaves the parties **married**; it addresses marital rights and property arrangements while the marriage continues, unlike a divorce decree.
- A surviving spouse’s statutory rights in a decedent’s estate (including an elective share and statutory allowances) are not lost by implication; waiver requires **clear and specific** agreement language showing intent to surrender death-related rights.
- Language assigning assets as each spouse’s “sole and separate property” and “free and clear” of the other’s interest typically functions as an inter-spousal property allocation during life and does not, without more, waive rights against a spouse’s estate at death.
- Missouri must give full faith and credit to a sister-state judgment as to what it actually adjudicates, but a foreign separate-maintenance property division will not be expanded to defeat Missouri statutory protections for surviving spouses absent an express waiver.
- Interpretation of the effect of the decree and the asserted waiver is a legal question reviewed without deference to the probate court.

## Conclusion

Because the Kansas separate-maintenance decree did not dissolve the McKowns’ marriage and did not clearly waive Elaine’s rights at Larry’s death, the Missouri Court of Appeals reversed the probate court’s denial of Elaine’s elective share and statutory allowances and remanded for proceedings consistent with its opinion.


In re Estate of McKown, 274 S.W.3d 496 (2008)