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.
History: L. 1939, ch. 180, § 209; L. 1951, ch. 335, § 2; L. 1972, ch. 215, § 13; L. 1975, ch. 299, § 18; L. 1976, ch. 242, § 34; L. 1981, ch. 228, § 5; L. 1994, ch. 132, § 20; L. 1996, ch. 53, § 7; L. 2006, ch. 52, § 1; July 1.
Source or prior law:
22-246, 22-247.
Cross References to Related Sections:
Elective share of surviving spouse, see 59-6a01 et seq.
Law Review and Bar Journal References:
1965-69 survey of estate planning and future interests, James K. Logan, 17 K.L.R. 455, 471 (1969).
Survival of widow's right of election, Sara Miller, 12 W.L.J. 245, 246 (1973).
Survey of decedents' estates, Frank Diehl, 15 W.L.J. 358 (1976).
"Will Substitutes in Kansas," Jana J. Deines and Michael E. McMahon, 23 W.L.J. 132, 133 (1983).
"Is Kansas Probate Non Claim Statute Unconstitutional?" John F. Kuether, 54 J.K.B.A. 115, 127 (1985).
CASE ANNOTATIONS
1. Inapplicable where widow made election in pais under former law. Cox v. McBroom, 155 Kan. 2, 6, 122 P.2d 185.
2. Proceedings to probate; notice insufficient to sustain order holding contract of spouse constituted election. In re Estate of Hoover, 155 Kan. 647, 648, 651, 127 P.2d 460. Affirmed: 156 Kan. 31, 33, 36, 131 P.2d 917.
3. Code contemplates and provides for election after will admitted to probate. In re Estate of Hoover, 156 Kan. 31, 33, 36, 131 P.2d 917.
4. Widow not estopped from claiming statutory share by offering will for probate. In re Estate of Garden, 158 Kan. 554, 564, 148 P.2d 745.
5. Inapplicable where election in pais made under former law. In re Estate of Anderson, 159 Kan. 512, 518, 519, 156 P.2d 860.
6. Questions justiciable in a proceeding to probate will determined; validity of postnuptial agreement cannot be determined. In re Estate of Osborn, 167 Kan. 656, 662, 208 P.2d 257.
7. Discussed; election in pais by spouse upheld. In re Estate of Rothrock, 173 Kan. 717, 718, 719, 252 P.2d 598.
8. Discussed; probate court's election for estate of deceased incompetent surviving spouse held proper. In re Estate of Henderson, 176 Kan. 168, 172, 268 P.2d 941.
9. Election under K.S.A. 59-603 held untimely; no election by implication; section does not extend period for filing. In re Estate of Jones, 179 Kan. 744, 746, 747, 748, 749, 298 P.2d 230.
10. Mentioned in determining effect of consent to will. Younger v. Estate of Younger, 198 Kan. 547, 550, 426 P.2d 67.
11. Petition operated as reaffirmation of consent to will; election hereunder contemplates taking under the law and against the will, and it occurs after will admitted to probate; election by surviving spouse to take by intestate succession not timely; provisions of will controlling. Schmidt v. United States, 279 F. Supp. 811, 815.
12. Right of election of surviving spouse not to take under will is personal and does not inure to heirs or representatives. In re Estate of Messenger, 208 Kan. 763, 768, 494 P.2d 1107.
13. Election by disinherited surviving spouse to claim one half of estate does not bar taking entire estate if bequest lapses and survivor is sole heir at law. In re Estate of Stroble, 6 Kan. App. 2d 955, 957, 959, 636 P.2d 236 (1981).
14. Equitable extension of time granted when surviving spouse induced by fraud to refrain from making election. In re Estate of Hessenflow, 21 Kan. App. 2d 761, 763, 909 P.2d 662 (1995).
15. No obligation on part of administrator to inform surviving spouse of his or her rights prior to July 1, 2006. In re Estate of Pritchard, 37 Kan. App. 2d 260, 275, 154 P.3d 24 (2007).
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