Full question:
I heard that my elective share in my husband's estate would be based on the years of our marriage, is that true. I was married to my husband for 5 years so what will be my share?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Kansas
Answer:
Yes, in Kansas, elective share of a surviving spouse is determined upon on the time-span of marriage. Accordingly, your elective share in your husband’s estate is based on time period of your marriage. If you were married to your husband for five years then you are entitled to receive 15% of the augmented estate. Thus, depending upon the years you were married to your spouse before his death, your elective-share percentage would be:Less than 1year then you would entitled to Supplemental amount only
1 year but less than 2 years then you would entitled to 3% of the augmented estate
2 years but less than 3 years then you would entitled to 6% of the augmented estate
3 years but less than 4 years then you would entitled to 9% of the augmented estate
4 years but less than 5 years then you would entitled to 12% of the augmented estate
5 years but less than 6 years then you would entitled to 15% of the augmented estate
6 years but less than 7 years then you would entitled to 18% of the augmented estate
7 years but less than 8 years then you would entitled to 21% of the augmented estate
8 years but less than 9 years then you would entitled to 24% of the augmented estate
9 years but less than 10 years then you would entitled to 27% of the augmented estate
10 years but less than 11 years then you would entitled to 30% of the augmented estate
11 years but less than 12 years then you would entitled to 34% of the augmented estate
12 years but less than 13 years then you would entitled to 38% of the augmented estate
13 years but less than 14 years then you would entitled to 42% of the augmented estate
14 years but less than 15 years then you would entitled to 46% of the augmented estate
15 years or more then you would entitled to 50% of the augmented estate
K.S.A. § 59-6a202 :
Elective share; amount; supplemental amount; effect of election on statutory benefits; nonresident.
(a)
(1) The surviving spouse of a decedent who dies a resident of this state has a right of election, under the limitations and conditions stated in this act, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the spouse The elective-share
were married to each other: percentage is:
Less than 1 year……………………………………...Supplemental Amount Only
1 year but less than 2 years ………………………….3% of the augmented estate
2 years but less than 3 years………………………….6% of the augmented estate
3 years but less than 4 years………………………….9% of the augmented estate
4 years but less than 5 years………………………….12% of the augmented estate
5 years but less than 6 years………………………….15% of the augmented estate
6 years but less than 7 years………………………….18% of the augmented estate
7 years but less than 8 years………………………….21% of the augmented estate
8 years but less than 9 years………………………….24% of the augmented estate
9 years but less than 10 years…………………………27% of the augmented estate
10 years but less than 11 years……………………….30% of the augmented estate
11 years but less than 12 years……………………….34% of the augmented estate
12 years but less than 13 years……………………….38% of the augmented estate
13 years but less than 14 years……………………….42% of the augmented estate
14 years but less than 15 years……………………….46% of the augmented estate
15 years or more………………………………………50% of the augmented estate.
(2)
If the decedent and the surviving spouse were married to each other more than once, all periods of marriage to each other are added together for purposes of this subsection.
Periods between marriages are not counted.
(b)
If the sum of the amounts described in K.S.A. 59-6a207, subsection (a)(1) of K.S.A. 59-6a209 and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under subsections (b) and (c) of K.S.A. 59-6a209 is less than $ 50,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $ 50,000, minus the sum of the amounts described in those sections.
The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in subsections (b) and (c) of K.S.A. 59-6a209.
(c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.
(d) The right, if any, of the surviving spouse of a decedent who dies a nonresident of this state to take an elective share in property in this state is governed by article 8 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto.
K.S.A. § 59-2233 :
Notice to surviving spouse.
(a) Upon the appointment and qualification of any administrator or executor, the filing of a petition for an order refusing to grant letters of administration or the filing of an affidavit pursuant to K.S.A. 59-618a, and amendments thereto, the administrator, executor, petitioner or affiant shall forthwith mail a copy of the will, if any, together with a notice statement to the surviving spouse stating: "Under K.S.A. 59-6a201 through 59-6a217, and amendments thereto, you may have a right to take a share of property owned by the decedent at death, in whole or in part, and of transfers of property made by the decedent prior to death." Such notice shall be mailed within 10 days of the qualification of the administrator or executor, the filing of a petition for an order refusing to grant letters of administration or the filing of an affidavit pursuant to K.S.A. 59-618a, and amendments thereto. Proof shall be by affidavit filed with the court.
(b) The mailing requirement of subsection (a) may be waived if:
(1) The surviving spouse is the petitioner or affiant; and
(2) a statement that the surviving spouse is aware that under K.S.A. 59-6a201 through 59-6a217, and amendments thereto, the surviving spouse may have a right to take a share of property owned by the decedent at death, in whole or in part, and of transfers of property made by the decedent prior to death is:
(A) Included in the petition for letters of administration, the petition for probate of a will, the petition for an order refusing to grant letters of administration or the affidavit pursuant to K.S.A. 59-618a, and amendments thereto; or
(B) included in an affidavit filed in the matter within 10 days after issuance of letters of administration, issuance of letters of testamentary, issuance of an order refusing to grant letters of administration or the filing of an affidavit pursuant to K.S.A. 59-618a, and amendments thereto.
K.S.A. § 59-2235:
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.
Kan. Stat. Ann. § 59-6a212
59-6a212. Right of election
(a) The right of election to the elective-share amount may be exercised by the surviving spouse or by the personal representative of a deceased surviving spouse or on behalf of a disabled surviving spouse by the court pursuant to K.S.A. 59-2234, and amendments thereto.
(b) The right of election to the supplemental elective-share amount, homestead or statutory allowance may be exercised by the surviving spouse, conservator, agent under a power of attorney, guardian ad litem appointed for the surviving spouse or by the court on behalf of a disabled spouse pursuant to K.S.A. 59-2234, and amendments thereto.
Kan. Stat. Ann. § 59-6a213
59-6a213. Waiver of right of election and other rights by surviving spouse; requirements; procedures
(a) The right of election of a surviving spouse and the rights of the surviving spouse to the homestead, the homestead allowance or the family allowance, or all of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, consent to any instrument, or waiver signed by the surviving spouse.
(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:
(1) The surviving spouse did not execute the waiver voluntarily; or
(2) the waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse:
(A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(d) Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share benefits that would otherwise pass to such spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement. For documents executed on and after July 1, 2002, to waive the homestead, the homestead allowance or the family allowance, or all of them, the language of the document must clearly provide that the homestead, the homestead allowance or the family allowance, or all of them, were understandably and knowledgeably waived by each spouse, if applicable.
Kan. Stat. Ann. § 59-6a203
59-6a203. Composition of the augmented estate
Subject to K.S.A. 59-6a208, the value of the augmented estate, to the extent provided in K.S.A. 59-6a204 through 59-6a207, consists of the sum of the values of all property that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.
Kan. Stat. Ann. § 59-6a211
59-6a211. Proceeding for elective share; time limit
(a) Except as provided in subsection (b), the election shall be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within six months after the date of the decedent's death, or within six months after the notice of the right to the elective share pursuant to K.S.A. 59-2233, and amendments thereto, whichever limitation later expires. The surviving spouse must give notice of the time and place set for hearing, in such manner as ordered by the court, to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. Except as provided in subsection (b), the decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share, if the petition is filed more than six months after the decedent's death.
(b) Within six months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within six months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court for good cause shown by the surviving spouse may extend the time for election. If the court grants the spouse's petition for an extension, the decedent's nonprobate transfers to others are not excluded from the augmented estate for the purpose of computing the elective-share and supplemental elective-share amounts, if the spouse makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension.
(c) The surviving spouse may withdraw the petition for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under K.S.A. 59-6a209 and 59-6a210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under K.S.A. 59-6a209 and 59-6a210 had relief been secured against all persons subject to contribution.
(e) An order or judgment of the court may be enforced by the surviving spouse, as necessary, to obtain contribution or payment in other courts of this state or other jurisdictions. The decedent's personal representative shall not be required to enforce contributions from the assets of the reclaimable estate.
Kan. Stat. Ann. § 59-6a206
59-6a206. Decedent's nonprobate transfers to the surviving spouse
Excluding property passing to the surviving spouse under the federal social security system, the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse, which consists of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:
(a) The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;
(b) the decedent's ownership interest in property or accounts held in coownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving coowner; and
(c) all other property that would have been included in the augmented estate under subsections (a) or (b) of K.S.A. 59-6a205 had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.
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