The property in a person's estate is passed to his beneficiaries when he dies. Many people prepare for this by making a will naming the people who will receive their property. A surviving spouse is almost always a beneficiary. However, if a spouse is disinherited, Kansas law provides a remedy that permits the spouse to still inherit from the estate. Additionally, if a person died without a will, a surviving spouse inherits through Kansas' "intestate succession" laws.
A surviving spouse may inherit any bequest in a decedent's will as long as the will meets the requirement set forth in the Kansas Probate Code. The law requires that a person making a will, called the testator, be no less than 18 years old. A testator must also be "of sound mind," meaning mentally competent to knowingly and voluntarily dispose of his property. The will must be in writing and the testator must sign the document. The will signing must take place in the presence of two witnesses, neither of whom are beneficiaries in the will.
The homestead allowance is a right granted to the surviving spouse after the decedent's death. In Kansas, the allowance permits the surviving spouse to maintain ownership and possession of the marital residence until the spouse remarries or any minor children reach the age of majority. When the homestead allowance terminates, the residence will pass to the beneficiary in accordance with the will or intestacy law. In addition to the homestead allowance, a spouse is entitled to a family allowance of up to $35,000 to support herself and any children after the decedent's death.
The Kansas Probate Code sets forth a surviving spouse's rights if she is disinherited (left out of a will). A surviving spouse is entitled to an "elective share" from the decedent's estate. In Kansas, the elective share is based on the length of the marriage. The minimum elective share is $50,000. Otherwise, a spouse is entitled to 3 percent of the estate for every year of marriage from one to 10 years -- for example, 6 percent for a two-year marriage or 27 percent for a nine-year marriage. The elective share award then begins going up by four percent -- 34 percent for an 11-year marriage or 38 percent for a 12-year marriage). The maximum elective share award is 50 percent of the decedent's estate when a surviving spouse was married to the decedent for 15 years or more.
Even if a decedent did not have a will, a surviving spouse is the first beneficiary entitled to inherit the intestate estate. Chapter 59 of the Kansas Statutes, called the probate code, sets for the spouse's rights to the estate. If the decedent is not survived by children, a surviving spouse will inherit the entire estate. When a decedent has children, the surviving spouse's inheritance is limited to one half of the estate, while the children divide the rest of the estate.
A surviving spouse must have been married to the decedent at the time of his death in order to be eligible to inherit. This means that even if a decedent did not amend his will, if he and the spouse divorced prior to his death, any provisions in the will leaving a bequest to a former spouse are considered revoked. If the decedent died without a will, a former spouse has no claim to the estate under Kansas' intestacy laws. (Reference 1)
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.