Printable Format59-2235. Selection of homestead and allowances. After the inventory and valuation have been filed, the surviving spouse, or in case there is none, the children, may petition the court to set apart the homestead, and the personal property allowed in K.S.A. 59-403. Such petition shall show the names, ages, and relationship of the parties, a description of the homestead claimed and of the personal property selected, and the valuation of the personal property selected under subsection (2) of K.S.A. 59-403. The petition may be heard with or without notice. Upon proof of the petition, the court shall set apart such homestead and personal property. The property so set apart shall be delivered by the executor or administrator to the persons entitled thereto, and shall not be treated as assets in his or her custody, but the title of the homestead shall be included in the final decree of distribution.
History: L. 1939, ch. 180, § 211; L. 1972, ch. 215, § 14; L. 1975, ch. 299, § 19; January 1, 1976.
Source or prior law:
22-103, 22-512, 22-514.
Cross References to Related Sections:
Exemption of homestead, see 59-401; see also Kansas Constitution, article 15, § 9.
Execution of mortgages and mineral leases where one spouse incapacitated, see 59-2314 through 59-2322.
Law Review and Bar Journal References:
Mentioned in nisi prius decision that jurisdiction of probate court depends on notice in a hearing as to the removal of an administratrix, 11 K.L.R. 297, 300 (1962).
"Survey of Kansas Homestead Law," 13 W.L.J. 447, 475 (1974).
CASE ANNOTATIONS
1. Cited; widow required to promptly select and describe land claimed as homestead. Meech v. Grigsby, 153 Kan. 784, 789, 113 P.2d 1091.
2. Spouse cannot petition where valid postnuptial contract disposing of property exists. Porter v. Axline, 154 Kan. 87, 90, 114 P.2d 849.
3. Probate court order setting aside homestead without notice to creditor held void. In re Estate of Schroeder, 158 Kan. 783, 785, 150 P.2d 173.
4. Petition to set apart homestead not filed; effect; cotenants' rights; discussed. Cole v. Coons, 162 Kan. 624, 626, 634, 639, 643, 178 P.2d 997.
5. Antenuptial contract held not waiver of widow's statutory allowance; statutes construed. In re Estate of Place, 166 Kan. 528, 532, 203 P.2d 132.
6. Widow entitled to homestead and family allowances as a matter of law. In re Estate of Hilliard, 172 Kan. 552, 555, 241 P.2d 729.
7. Death of incompetent surviving spouse prior to election; election by court. In re Estate of Henderson, 176 Kan. 168, 170, 171, 268 P.2d 941.
8. Inapplicable to descent proceeding under K.S.A. 59-2250 and 59-2251. Carter v. Carter, 187 Kan. 74, 76, 77, 80, 353 P.2d 499.
9. Under circumstances probate court decides if cotenant has homestead right which follows proceeds of portioned real property. Curry v. Perney, 194 Kan. 722, 402 P.2d 316.
10. Mentioned in holding that surviving widow is entitled to crops growing on homestead. In re Estate of Johnson, 202 Kan. 684, 700, 452 P.2d 286.
11. Cited; spouse's homestead right upheld, although she was forced to absent herself because of abuse from her drinking husband; intent to return retained. In re Estate of Fink, 4 Kan. App. 2d 523, 526, 609 P.2d 211.