Printable Format59-404. Effect of election to take under will by spouse. The surviving spouse, by electing to take under the will of the decedent or by consenting thereto, does not waive the homestead right nor the right to such allowance, unless it clearly appears from the will that the provision therein made for such spouse was intended to be in lieu of such rights.
History: L. 1939, ch. 180, ยง 22; July 1.
Source or prior law:
22-246.
Law Review and Bar Journal References:
Effect of spouse's consent to a will on the homestead and allowances, 10 K.L.R. 104, passim (1961).
Rights of a surviving spouse, Camilla Klein Haviland, 19 K.L.R. 575, 578 (1971).
"Survey of Kansas Homestead Law," 13 W.L.J. 447, 475 (1974).
"Kansas Homestead Law," Roger L. Theis and Karl R. Swartz, 65 J.K.B.A. No. 3, 20, 43 (1996).
CASE ANNOTATIONS
1. Section inapplicable where valid postnuptial contract providing for property disposition exists. Porter v. Axline, 154 Kan. 87, 91, 114 P.2d 849.
2. Proceedings to probate; notice insufficient to sustain order holding contract of spouse constituted election. In re Estate of Hoover, 155 Kan. 647, 648, 127 P.2d 460. Affirmed: 156 Kan. 31, 33, 131 P.2d 917.
3. Will construed; widow's homestead claim denied. In re Estate of Wenzel, 161 Kan. 545, 556, 170 P.2d 618.
4. Widow waived homestead right by consenting to husband's will. In re Estate of Fawcett, 163 Kan. 448, 450, 451, 453, 183 P.2d 403.
5. Homestead rights of wife cannot be affected by antenuptial agreement. In re Estate of Place, 166 Kan. 528, 532, 203 P.2d 132.
6. Widow's claim for homestead and allowances not contrary to rights under contract. In re Estate of Hilliard, 172 Kan. 552, 556, 241 P.2d 729.
7. Widow waived homestead rights by consenting to husband's will. In re Estate of Elliott, 174 Kan. 252, 253, 256, 255 P.2d 645.
8. Surviving spouse by consenting to will waived rights to statutory allowances. In re Estate of Snyder, 187 Kan. 373, 374, 357 P.2d 778.
9. Wife entitled to statutory allowances in addition to benefits under will; consent to will; section applied. In re Estate of Morrison, 189 Kan. 704, 706, 371 P.2d 171.
10. Mentioned in holding that an antenuptial agreement left homestead rights intact. In re Estate of Johnson, 202 Kan. 684, 694, 452 P.2d 286.
11. Joint, mutual and contractual will and right to homestead and statutory allowances held not necessarily mutually exclusive. In re Estate of Barnett, 207 Kan. 484, 486, 485 P.2d 1290.
12. Applied; 1975 amendment to K.S.A. 59-403, increasing statutory allowance, applied prospectively, not retrospectively. In re Estate of Lave, 225 Kan. 177, 187, 589 P.2d 558.
13. Trial court did not err in awarding spousal allowance. In re Estate of Hessenflow, 21 Kan. App. 2d 761, 777, 909 P.2d 662 (1995).