Printable Format59-505. Same; half of realty to surviving spouse. Except as provided further, the surviving spouse shall be entitled to receive one-half of all real estate of which the decedent at any time during the marriage was seized or possessed and to the disposition whereof the survivor shall not have consented in writing, or by a will, or by an election as provided by law to take under a will, except such real estate as has been sold on execution or judicial sale, or taken by other legal proceeding. The surviving spouse shall not be entitled to any interest under the provisions of this section in any real estate of which such decedent in such decedent's lifetime made a conveyance, when such spouse at the time of the conveyance was not a resident of this state and never had been during the existence of the marriage relation. The spouse's entitlement under this section shall be included as part of the surviving spouse's property under K.S.A. 59-6a207, and amendments thereto.
History: L. 1939, ch. 180, § 27; L. 1996, ch. 53, § 1; July 1.
Source or prior law:
22-108, 22-117, 22-127.
Law Review and Bar Journal References:
Election of spouse to take against a will, 9 K.L.R. 356, 357 (1961).
"Unwise Transfers in Estate Planning," James K. Logan, 33 J.B.A.K. 9, 66 (1964).
Effect on separate maintenance decree discussed in "Divorce Under the New Code," Dan Hopson, Jr., 33 J.B.A.K. 165, 215 (1964).
Not applicable to nonresident spouse, Richard C. Harris, 14 K.L.R. 139, 147 (1965).
"Inchoate Dower and the Marketable Title," David K. Fromme, 4 W.L.J. 240, 241, 244 (1965).
1963-65 survey of future interests and estate planning, James K. Logan, 14 K.L.R. 293, 304 (1965).
"Mr. Dacey and His Book," James K. Logan, 36 J.B.A.K. 181, 225 (1967).
Real estate lease in Kansas, Richard L. Zinn, 17 K.L.R. 707, 723 (1969).
The proposed Uniform Probate Code; the vision of probable desires of the intestate different from that found herein, Camilla Klein Haviland, 19 K.L.R. 575, 576 (1971).
Tax aspects of a divorce property settlement, 13 W.L.J. 169, 172 (1974).
"Living Together as Husband and Wife." Tim Carmody, 14 W.L.J. 164 (1975).
"Kansas Marketable Record Title Act—Inherent Defects in the Root of Title," William R. Scott, 45 J.B.A.K. 11, 15 (1976).
Property settlements in divorce and proposed amendments to K.S.A. 23-201, Keith (Casey) D. Cohen, 47 J.B.A.K. 275, 281 (1978).
"When is 'Alimony' Not Alimony Under Kansas Law?" Patrick J. Regan and Philip J. Erbacher, 20 W.L.J. 495, 503 (1981).
"Will Substitutes in Kansas," Jana J. Deines and Michael E. McMahon, 23 W.L.J. 132, 139 (1983).
"Decedents Estates: Revocable Trusts and The Surviving Spouse's Share: How Much Is Enough? [Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988)]," Gary Patterson, 28 W.L.J. 430, 431 (1989).
"Divorce Law: Lis Pendens, Judgment Liens, Homestead Exemptions, and Bankruptcy," John C. Peck, Shala M. Bannister and W. Thomas Gilman, 60 J.K.B.A. No. 2, 25 (1991).
"The Capricious Operation of the Kansas Elective Share: Feast or Famine for the Surviving Spouse," John W. Kuether and Willard B. Thompson, 61 J.K.B.A. No. 10, 32, 33, 36 (1992).
"New Spousal Elective-Share Rights: Leveling the Playing Field," Timothy P. O'Sullivan and Joan M. Bowen, 65 J.K.B.A. No. 2, 18, 23, 26 (1996).
"Decedent's Estates: Complicating Kansas's Family Protection Law," JoAnn M. Stone, 38 W.L.J. 1005 (1999).
"Some issues concerning the property of married persons in Kansas," John C. Peck, 68 J.K.B.A. No. 8, 18 (1999).
Attorney General's Opinions:
Watershed district act; proposed districts; qualified voters. 88-51.
CASE ANNOTATIONS
1. Section contemplates surviving spouse's share to be held in severalty. Ward v. Ward, 153 Kan. 222, 226, 109 P.2d 68.
2. Nature of wife's interest discussed; spouse of will beneficiary competent witness to will. In re Estate of Williams, 158 Kan. 734, 737, 150 P.2d 336. Reaffirmed: 159 Kan. 232, 153 P.2d 906.
3. Discussed; contract, will and deed construed as family settlement; not revoked. Hagerman v. Hagerman, 160 Kan. 742, 751, 165 P.2d 431.
4. Statute has no application to antenuptial agreement. In re Estate of Schippel, 169 Kan. 151, 166, 218 P.2d 192.
5. Mentioned; oral agreement inducing sale of homestead violated; resulting trust established. Harrington v. Harrington, 172 Kan. 549, 551, 241 P.2d 513.
6. Decedent's property; administrator has only right of possession during administration. Peterson v. Peterson, 173 Kan. 636, 639, 251 P.2d 221.
7. Where wife never Kansas resident, husband alone may convey real estate. McGill v. Kuhn, 186 Kan. 99, 103, 348 P.2d 811.
8. Applied; Texan's signature to wife's deed to Kansas property not required; "sojourner" not "resident." Dwyer v. Matson, 163 F.2d 299, 300, 301.
9. Nonresident wife has no vested right of inheritance in husband's real estate. Ackers v. First National Bank of Topeka, 192 Kan. 319, 325, 327, 328, 387 P.2d 840. Rehearing denied: 192 Kan. 471, 389 P.2d 1.
10. Statute protects interest in real property during marital relation which spouse has right to inherit under K.S.A. 59-504. Jackson v. Lee, 193 Kan. 40, 43, 45, 50, 392 P.2d 92.
11. Inchoate interest of husband in wife's real property does not include real estate taken by legal proceeding prior to wife's death; husband not indispensable party to such proceeding. Hindman v. Shepard, 205 Kan. 207, 217, 468 P.2d 103.
12. Husband's transfer of property to wife in anticipation of divorce taxable event, rather than property division. Wiles v. C.I.R., 499 F.2d 255, 256.
13. Section applied; widow allowed to elect against will of deceased husband. Linson v. Johnson, Executrix, 1 Kan. App. 2d 155, 161, 563 P.2d 485.
14. Inchoate interest does not include real estate taken by legal proceedings by one spouse; partnership property. Stauth v. Stauth, 2 Kan. App. 2d 512, 513, 582 P.2d 1160.
15. Cited in holding one spouse may not sue the other for torts occurring during marriage. Guffy v. Guffy, 230 Kan. 89, 95, 631 P.2d 646 (1981).
16. Cited; taxes as not including federal estate tax on marital deduction property, reduction of marital deduction examined. Jeschke v. U.S., 814 F.2d 568, 576 (1987).
17. Cited; revocable inter vivos trust created by husband without wife's consent examined. Newman v. George, 243 Kan. 183, 186, 755 P.2d 18 (1988).
18. IRA considered revocable inter vivos trust subject to rights of nonconsenting surviving spouse. McCarty v. State Bank of Fredonia, 14 Kan. App. 2d 552, 560, 795 P.2d 940 (1990).
19. Cited where K.S.A. 9-1215 construed to exclude payable-on-death accounts from all provisions of probate code. Snodgrass v. Lyndon State Bank, 15 Kan. App. 2d 546, 552, 811 P.2d 58 (1991).
20. Action by widow of testate decedent to invalidate inter vivos trusts and have assets transferred to probate estate examined. Taliaferro v. Taliaferro, 252 Kan. 192, 195, 843 P.2d 240 (1992).