Printable Format59-602. Limitation on testamentary power. Any devise or other disposition of real estate located in this state taking effect in possession or enjoyment at death, and any bequest or other disposition of any personal property by a resident of this state taking effect in possession or enjoyment at death, without regard to the time when the will or other instrument containing such devise, bequest or other such disposition shall have been made, to any foreign country, subdivision thereof, or city, body politic, or corporation, located therein or existing under the laws thereof, or in trust or otherwise to any trustee or agent thereof, except devises, bequests or other such dispositions to institutions created and existing exclusively for religious, educational, or charitable purposes, is hereby prohibited. Any such devise, bequest or other such disposition shall be void.
History: L. 1939, ch. 180, § 38; L. 1992, ch. 79, § 1; L. 1994, ch. 132, § 19; January 1, 1995.
Source or prior law:
22-238.
Cross References to Related Sections:
Effect of election of spouse to take under will, see 59-404.
Law Review and Bar Journal References:
Election of spouse to take against a will, 9 K.L.R. 356, 357 (1961).
Rights of surviving spouse in trust property, David R. Hederstedt, 13 K.L.R. 145, 148 (1964).
Paragraph (2) cited in 1963-65 survey of future interests and estate planning, James K. Logan, 14 K.L.R. 293, 304 (1965).
Rights of a surviving spouse, Camilla Klein Haviland, 19 K.L.R. 575, 578 (1971).
Survival of widow's right of election, Sara Miller, 12 W.L.J. 245 (1973).
Tax aspects of a divorce property settlement, 13 W.L.J. 169, 172 (1974).
"Survey of Kansas Homestead Law," 13 W.L.J. 447, 474 (1974).
"Validity of Consent to a Spouse's Will," Tom L. Schwinn, 45 J.B.A.K. 33 (1976).
"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, 432 (1989).
"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 (1992).
"Avoiding Pitfalls in the Preparation of inter vivos Trusts: Lessons fromJarvis v. Jarvis," Larry G. Michel, 62 J.K.B.A. No. 3, 26, 27, 29, 30 (1993).
"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, 19 (1996).
"Kansas Homestead Law," Roger L. Theis and Karl R. Swartz, 65 J.K.B.A. No. 3, 20, 40 (1996).
"Decedent's Estates: Complicating Kansas's Family Protection Law," JoAnn M. Stone, 38 W.L.J. 1005 (1999).
CASE ANNOTATIONS
1. Spouse elected to take under law; rules for distributing remainder of property under will stated and applied. Tomb v. Barbo, 153 K. 766, 768, 114 P.2d 320.
2. Clause (1) discussed, construed and applied; bequest to town in Switzerland held void. In re Estate of Weeks, 154 K. 103, 104, 105, 110, 112, 114 P.2d 857.
3. Widow waived homestead right by consenting to husband's will. In re Estate of Fawcett, 163 K. 448, 451, 183 P.2d 403.
4. No election; no consent; widow entitled to homestead and allowances; widow held not to have waived homestead or statutory allowance. In re Estate of Place, 166 K. 528, 532, 203 P.2d 132.
5. Wife's written consent to testamentary document considered and held valid; consent must be given freely and understandingly; test; evidence. In re Estate of Ellis, 168 K. 11, 27, 28, 29, 33, 34, 35, 210 P.2d 417.
6. Bequest to foreign city held void. Eaton v. Doe, 172 K. 643, 653, 654, 656, 658, 243 P.2d 236.
7. Written consent to take under will held valid and binding. In re Estate of Patzner, 173 K. 133, 140, 244 P.2d 1183.
8. Discussed; probate court's election for estate of deceased incompetent surviving spouse authorized. In re Estate of Henderson, 176 K. 168, 174, 268 P.2d 941.
9. Section not violated by purchase of United States bonds payable on death. In re Estate of Cornelison, 178 K. 607, 609, 610, 290 P.2d 1016.
10. Postnuptial agreement; waiver of rights under act. In re Estate of Bradley, 179 K. 539, 540, 297 P.2d 180.
11. Surviving spouse by consenting to will waived rights to statutory allowances. In re Estate of Snyder, 187 K. 373, 375, 357 P.2d 778.
12. Uncontradicted evidence showing testator competent to make will cannot be disregarded by trial court. In re Estate of Winn, 191 K. 269, 274, 380 P.2d 352.
13. No distinction between resident and nonresident; protects right given by 59-504. Ackers v. First National Bank of Topeka, 192 K. 319, 325, 327, 328, 329, 387 P.2d 840. Rehearing denied: 192 K. 471, 389 P.2d 1.
14. Mentioned; wife of deceased successful in electing to renounce husband's will made after separate maintenance decree. In re Estate of Fults, 193 K. 491, 492, 494, 394 P.2d 32.
15. Mortgagor's consent to will operated as extension of note and mortgage owned by testatrix. Younger v. Estate of Younger, 198 K. 547, 550, 426 P.2d 67.
16. Applied; proceeding to establish claim against estate; wife elected to take under law. In re Estate of Mullin, 201 K. 756, 764, 443 P.2d 331.
17. Mentioned in determining that anti-lapse statute in effect at testator's death applies to will executed before statute's enactment. In re Estate of Thompson, 213 K. 704, 707, 518 P.2d 393.
18. Right of married person to dispose of personal property during lifetime without consent of spouse; not testamentary disposition. Eastman, Administrator v. Mendrick, 218 K. 78, 83, 542 P.2d 347.
19. Referred to in determining statute of frauds did not bar recovery where performance by one party and agreement performable within one year. Harold v. Harold, 218 K. 284, 287, 543 P.2d 1019.
20. Applied; petition alleged fraud, raising questions precluding summary judgment. Schierenberg v. Hodges, 221 K. 64, 66, 558 P.2d 133.
21. Distinction between forfeitures to government and forfeitures between individuals discussed; rights of surviving joint tenant determined (dissenting opinion). In re Estate of Shields, 224 K. 604, 609, 584 P.2d 139.
22. Separation and property settlement agreement in contemplation of divorce bars inheritance by wife though divorce interrupted by death of husband. In re Estate of Loughmiller, 229 K. 584, 585, 591, 592, 629 P.2d 156 (1981).
23. Cited; revocable inter vivos trust created by husband without wife's consent examined. Newman v. George, 243 K. 183, 185, 755 P.2d 18 (1988).
24. IRA considered revocable inter vivos trust subject to rights of nonconsenting surviving spouse. McCarty v. State Bank of Fredonia, 14 K.A.2d 552, 560, 795 P.2d 940 (1990).
25. Cited where 9-1215 construed to exclude payable-on-death accounts from all provisions of probate code. Snodgrass v. Lyndon State Bank, 15 K.A.2d 546, 552, 811 P.2d 58 (1991).
26. Action by widow of testate decedent to invalidate inter vivos trusts and have assets transferred to probate estate examined. Taliaferro v. Taliaferro, 252 K. 192, 843 P.2d 240 (1992).
27. Trial court erred in finding formalities of execution invalidated consent of spouse to will. In re Estate of Hessenflow, 21 K.A.2d 761, 767, 909 P.2d 662 (1995).
28. Issue regarding whether section prohibits change of I.R.A. beneficiary without spouse's consent precluded summary judgment. Pope v. Cauffman, 885 F.Supp. 1451, 1457 (1995).
29. Will which did not refer to preexisting inter vivos trust did not revoke trust. In re Estate of Sanders, 261 K. 176, 186, 929 P.2d 153 (1996).