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59-403. Allowance to spouse and minor children. When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse and the decedent's minor children during the period of their minority, from the personal or real property of which the decedent was possessed or to which the decedent was entitled at the time of death, the following:

(a) The wearing apparel, family library, pictures, musical instruments, furniture and household goods, utensils and implements used in the home, one automobile, and provisions and fuel on hand necessary for the support of the spouse and minor children for one year.

(b) A reasonable allowance of not more than $75,000 in money or other personal or real property at its appraised value in full or part payment thereof, with the exact amount of such allowance to be determined and ordered by the court, after taking into account the condition of the estate of the decedent.

The property shall not be liable for the payment of any of decedent's debts or other demands against the decedent's estate, except liens thereon existing at the time of the decedent's death. If there are no minor children, the property shall belong to the spouse; if there are minor children and no spouse, it shall belong to the minor children. The selection shall be made by the spouse, if living, otherwise by the guardian of the minor children. In case any of the decedent's minor children are not living with the surviving spouse, the court may make such division as the court deems equitable.

History: L. 1939, ch. 180, § 21; L. 1941, ch. 284, § 1; L. 1965, ch. 352, § 1; L. 1967, ch. 313, § 1; L. 1975, ch. 299, § 2; L. 1989, ch. 173, § 1; L. 1991, ch. 166, § 1; L. 1994, ch. 132, § 18; L. 2000, ch. 25, § 1; L. 2008, ch. 14, § 1; L. 2023, ch. 77, § 1; July 1.

Source or prior law:

22-511, 22-512, 22-513, 22-514.

Cross References to Related Sections:

Selection of allowances, see 59-2235.

Law Review and Bar Journal References:

Survey of law of administration of estates, Richard C. Harris, 14 K.L.R. 139, 141 (1965).

"Joint Tenancy: Effects Explored," Marvin E. Thompson, 37 J.B.A.K. 83, 85 (1968).

1965-69 survey of estate planning and future interests, James K. Logan, 17 K.L.R. 455, 492 (1969).

"Does Kansas Need the Uniform Probate Code?" Verne M. Laing, 42 J.B.A.K. 139, 144 (1973).

"Dispensing with Administration in Small Estates: A Marketable Title Problem," William R. Scott, 42 J.B.A.K. 337, 338 (1973).

"A Practical Review of the 1975 Kansas Probate Code Revisions," Philip S. Frick, 44 J.B.A.K. 137, 141 (1975).

Survey of decedents' estates, Frank Diehl, 15 W.L.J. 358 (1976).

"The Ultimate Burden of the Federal Estate Tax in Kansas—A Dilemma for Executors," Austin Nothern and John H. Wachter, 17 W.L.J. 231, 256 (1978).

"Survey of Kansas Law: Wills, Trusts, and Probate," 29 K.L.R. 595 (1981).

"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).

"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, 20 (1996).

"Decedent's Estates: Complicating Kansas's Family Protection Law," JoAnn M. Stone, 38 W.L.J. 1005 (1999).

"Clients, conflicts subjects among recent queries," Ron Smith, 69 J.K.B.A. No. 8, 10 (1999).

"Y2K: An active year for judicial legislation," Paul T. Davis, 69 J.K.B.A. No. 7, 12 (2000).

CASE ANNOTATIONS

1. Cited; widow required to promptly select and describe land claimed as homestead. Meech v. Grigsby, 153 K. 784, 789, 113 P.2d 1091.

2. Section inapplicable where valid postnuptial contract providing for property disposition exists. Porter v. Axline, 154 K. 87, 88, 90, 91, 114 P.2d 849.

3. Proceedings to probate; notice insufficient to sustain order holding contract of spouse constituted election. In re Estate of Hoover, 155 K. 647, 648, 127 P.2d 460. Affirmed: 156 K. 31, 33, 131 P.2d 917.

4. Allowance to surviving spouse not subject to garnishment for her individual debts. O'Dell v. O'Dell, 157 K. 351, 352, 353, 354, 139 P.2d 376.

5. Widow waived homestead right by consenting to husband's will. In re Estate of Fawcett, 163 K. 448, 450, 451, 183 P.2d 403.

6. Valid postnuptial agreement may dispose of rights hereunder. In re Estate of Winter, 164 K. 615, 616, 617, 192 P.2d 186.

7. Antenuptial contract held not waiver of widow's statutory allowance; statutes construed. In re Estate of Place, 166 K. 528, 529, 532, 203 P.2d 132.

8. No election; no consent; widow entitled to homestead and allowances. In re Estate of Place, 166 K. 528, 529, 532, 203 P.2d 132.

9. Action for destruction of automobile survives to owner's personal representatives not heirs. Howe v. Mohl, 168 K. 445, 447, 214 P.2d 298.

10. Widow by antenuptial contract could and did waive rights to allowances. In re Estate of Neis, 170 K. 254, 255, 225 P.2d 110.

11. Widow entitled to homestead and family allowances as a matter of law. In re Estate of Hilliard, 172 K. 552, 555, 241 P.2d 729.

12. Decedent's property; administrator has only right of possession during administration. Peterson v. Peterson, 173 K. 636, 639, 251 P.2d 221.

13. Incompetent surviving spouse's death prior to delivery and payment of allowances; effect. In re Estate of Henderson, 176 K. 168, 171, 268 P.2d 941.

14. Surviving spouse by consenting to will waived rights to statutory allowances. In re Estate of Snyder, 187 K. 373, 374, 378, 379, 357 P.2d 778.

15. Wife entitled to statutory allowances in addition to benefits under will; consent to will; 59-404 applied. In re Estate of Morrison, 189 K. 704, 706, 371 P.2d 171.

16. Statutory allowances granted in case involving antenuptial contract. In re Estate of Countryman, 203 K. 731, 733, 734, 457 P.2d 53.

17. Cited in case involving construction of an antenuptial contract. In re Estate of Taylor, 205 K. 347, 358, 359, 469 P.2d 437.

18. Fact that joint and mutual will also contractual held not to preclude surviving spouse from claiming homestead rights and statutory allowances. In re Estate of Barnett, 207 K. 484, 485, 487, 485 P.2d 1290.

19. 1975 amendment increasing allowance to surviving spouse applied prospectively, not retrospectively. In re Estate of Lave, 225 K. 177, 180, 186, 187, 188, 589 P.2d 558.

20. Will withheld from probate more than nine months; no forfeiture thereby of rights under this section. In re Estate of Ciochon, 4 K.A.2d 448, 451, 457, 609 P.2d 177.

21. Natural children of decedent not entitled to allowances from decedent when adopted by others prior to decedent's death. In re Estate of Carriger, 4 K.A.2d 594, 595, 609 P.2d 685.

22. Trial court did not err in awarding spousal allowance. In re Estate of Hessenflow, 21 K.A.2d 761, 777, 909 P.2d 662 (1995).

23. Trial court may consider financial condition of decedent's spouse and minor children in determining family allowance award. In re Estate of Wheat, 24 K.A.2d 934, 935, 955 P.2d 1339 (1998).

24. Appeal of claim that statutory allowance was void due to administratrix's defective bond untimely filed. In re Estate of Harrison, 25 K.A.2d 661, 663, 967 P.2d 1091 (1998).

25. Allowance provided is not an election against decedents' will or trust nor technically a marital right. In re Hjersted Revocable Trust, 35 K.A.2d 799, 805, 135 P.3d 192 (2006).

26. Cited; spousal allowance upheld over objection of heirs that court did not consider whether spouse needed it. In re Estate of Lane, 39 K.A.2d 1062, 1070, 188 P.3d 23 (2008).


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