Source or prior law:

G.S. 1868, ch. 38, § 1; R.S. 1923, 60-3501.

Cross References to Related Sections:

Constitutional homestead exemption, see Kansas Constitution, article 15, § 9.

Homestead and family allowances, probate code, see chapter 59, article 4.

Law Review and Bar Journal References:

"Unwise Transfers in Estate Planning," James K. Logan, 33 J.B.A.K. 9, 63 (1964).

Mentioned in discussion of developments in debtor-creditor law between 1965 and 1969, Robert B. Morton, 18 K.L.R. 351, 375 (1970).

"Survey of Kansas Homestead Law," 13 W.L.J. 447 (1974).

Foreclosing federal tax liens on homesteads, 13 W.L.J. 542 (1974).

"Consumer Law—Limitations on the Validity of Future Advance Clauses in Mortgage Contracts," 23 K.L.R. 745, 747 (1975).

"Professional Liability Insurance: Implication of Termination," Wayne T. Stratton, 77 J.K.M.S. 255, 257 (1976).

"Bankruptcy: The Duplex—A Minority View of the Homestead Exemption," Kay Y. Rute, 18 W.L.J. 342, 346, 347 (1979).

"Bankruptcies in Kansas: A Need to Reform Our Exemption Laws?" Stuart A. Haney, 22 W.L.J. 286, 289 (1983).

"Agricultural Law: FmHA Farm Foreclosures, An Analysis of Deferral Relief and the Appeals System," Karen Kubovec McIlvain, 23 W.L.J. 287, 292 (1984).

"Counselling Debtors on Bankruptcy—Which Chapter to Choose," David J. Berkowitz, 53 J.K.B.A. 272 (1984).

"No Mere Yeoman: Incorporating the Family Farm—Considerations and Consequences," Eric Melgren, 24 W.L.J. 546, 569 (1985).

"ERISA Retirement Benefits Under Bankruptcy Law—A Kansas Perspective," Kathy A. Stover, 55 J.K.B.A. No. 8, 18, 19 (1986).

"Bankruptcy and Divorce in Kansas," J. Scott Pohl and C. J. Wahrman, 29 W.L.J. 551, 576 (1990).

"Divorce Law: Lis Pendens, Judgment Liens, Homestead Exemptions, and Bankruptcy," John C. Peck, Shala M. Bannister and W. Thomas Gilman, 60 J.K.B.A. No. 2, 25, 27 (1991).

"Kansas Homestead Law," Roger L. Theis and Karl R. Swartz, 65 J.K.B.A. No. 3, 20, 22, 25, 28, 34, 37, 43 (1996).

"Redemption, Reaffirmation, Exemption, and Retention in Chapter 7 Bankruptcy: Extinction Looms Near for the Free Ride," Michael P. Alley, 47 K.L.R. 683 (1999).

"The Kansas Uniform Fraudulent Transfer Act," Leon B. Graves, 68 J.K.B.A. No. 6, 34 (1999).

"The Effect of Bankruptcy on Divorce Planning," Brenda J. Bell, Sharon Wright Kellstrom and Anne Burke Miller, 70 J.K.B.A. No. 3, 30 (2001).

"There's No Place Like Home in Debtor's Paradise: The Tenth Circuit's Liberal Construction of the Kansas Homestead Exemption and the Doctrine of Equitable Conversion [Jenkins v. Hodes (In re Hodes), 402 F.3d 1005 (10 th Cir. 2005)]," Molly E. McMurray, 45 W.L.J. 203 (2005).

Attorney General's Opinions:

Extent of homestead exemption. 88-147.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-3501 and the 1961 Supp. thereto.

1. Term "occupancy" considered; determination of abandonment or destruction of homestead. Bellport v. Harder, 196 K. 294, 297, 298, 411 P.2d 725.

2. Right of redemption of corporate mortgagor not exempt property. Southwest State Bank v. Quinn, 198 K. 359, 363, 424 P.2d 620.

3. Homestead is presumed to continue until intention not to return proven. Giblin v. Beeler, 396 F.2d 584, 585, 589, 590.

4. Cited; certain property properly set aside as exempt in bankruptcy case. In re Hamill, 317 F.Supp. 909, 910, 913, 914 (1970).

5. Homestead; when farming land within limits of incorporated town, homestead exemption limited to one acre. In re Stafos, 354 F.Supp. 299, 300.

6. Under tax foreclosure exception of homestead law, tax must relate only to taxes arising against the property involved. United States v. Hershberger, 475 F.2d 680.

7. Homestead exemption limited to one acre when farming land within limits of incorporated town. Stafos v. Jarvis, 477 F.2d 369, 370, 373.

8. Property not exempt unless occupied as a residence by family of owner; residence defined. Beard v. Montgomery Ward & Co., 215 K. 343, 344, 347, 524 P.2d 1159.

9. Husband's transfer of property to wife in anticipation of divorce taxable event, rather than property division. Wiles v. C.I.R., 499 F.2d 255, 256.

10. Homestead of family of decedent exemption from debts of decedent. Jones v. St. Francis Hosp. & School of Nursing, 225 K. 649, 652, 594 P.2d 162.

11. Section construed; leased unit of bankrupt's duplex not covered by homestead exemption. Belcher v. Turner, 579 F.2d 73, 74.

12. Waiver of homestead and personal exemptions by executory contract is against public policy and void. Celco, Inc. of America v. Davis Van Lines, Inc., 226 K. 366, 368, 369, 598 P.2d 188.

13. Spouse's homestead right upheld, although she was forced to absent herself because of abuse from her drinking husband; intent to return retained. In re Estate of Fink, 4 K.A.2d 523, 525, 526, 529, 609 P.2d 211.

14. If owner demonstrates intent to occupy property prior to attachment of lien, homestead exemption applies under constructive occupancy rule. Security State Bank v. Coberly, 5 K.A.2d 691, 623 P.2d 544.

15. "Reasonably necessary" does not mean indispensable; purpose of homestead exemption. Nohinek v. Logsdon, 6 K.A.2d 342, 343, 628 P.2d 257 (1981).

16. Distinction between "alimony" and "property division" no longer significant; judgment of divorce became lien on marital property awarded to defendant and later claimed as homestead. Bohl v. Bohl, 234 K. 227, 229, 231, 670 P.2d 1344 (1983).

17. Homestead continues once it attaches to property; noncustodial debtor's right to exemption, permissible uses on homestead examined. In re Cummings, 40 B.R. 208, 209 (1983).

18. Security agreement did not meet requirements for enforceable security agreement. In Re Swearingen, 27 B.R. 379, 380, 384 (1983).

19. Insolvent employer's obligation under Kansas workers compensation act was nontax in nature; not entitled to tax priority in bankruptcy. In Re Payne, 27 B.R. 809, 810, 814 (1983).

20. Noncontiguous tracts of land cannot constitute homestead. In re Piersol, 35 B.R. 121, 122 (1983).

21. Debtor was entitled to exemption for unaccrued royalty interest arising from oil and gas lease below homestead. In re Thexton, 39 B.R. 367, 368, 372 (1984).

22. Exemption statute no bar to foreclosure of tax lien; court may disallow foreclosure against nonliable homestead interest holder. McDaniel v. Jones, 235 K. 93, 111, 112, 679 P.2d 682 (1984).

23. Nonavoidance of former spouse's lien acquired in divorce decree examined. In re Maus, 48 B.R. 948, 949 (1985).

24. Proceeds from involuntary transfer of homestead pursuant to divorce exempt where debtor intended to invest in another homestead. In re Daniels, 65 B.R. 703, 706 (1986).

25. Petition filed prior to defendant's acquisition of homestead property as creating avoidable lien examined. In re Sprick, 78 B.R. 292, 294 (1987).

26. Money lien granted by divorce court on home of debtor as dischargeable in bankruptcy as judicial lien determined. In re Alvarado, 92 B.R. 923, 925 (1988).

27. Mortgagee's assignee, as consensual lienholder, entitled to foreclose without regard to homestead exemption. U.S. v. Cox, 731 F.Supp. 1023 (1990).

28. Homestead, establishment, occupancy, intent; debtor claimed 160 acres. In re Snook, 134 B.R. 424 (1991).

29. Historical form of "doctrine of necessaries," while unconstitutional, expanded to apply to husbands and wives equally. St. Francis Regional Med. Center, Inc. v. Bowles, 251 K. 334, 340, 836 P.2d 1123 (1992).

30. Joint tenants with homestead interest in tract exceeding 160 acres may exempt only 160 acres. Commerce Bank v. Odell, 16 K.A.2d 704, 705, 706, 827 P.2d 1205 (1992).

31. Issuing preliminary injunction freezing personal residence when possible fraudulently obtained funds traced to residence upheld. Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1197, 1203 (1992).

32. Proceeds from involuntary sale of homestead in Michigan not exempt hereunder; no extra-territorial force. In re Sipka, 149 B.R. 181, 182 (1992).

33. Whether homestead acquired subject to judgment lien is exempt from forced sale to satisfy past due child support examined. In re Marriage of Johnson, 19 K.A.2d 487, 488, 872 P.2d 308 (1994).

34. Whether compensating lien granted to former husband in homestead could be avoided pursuant to bankruptcy lien avoidance provision examined. In re Hilt, 175 B.R. 747, 749 (1994).

35. Claimant failed to show irreparable injury regarding redemption of certain property to justify temporary restraining order. Geiger v. Espy, 885 F.Supp. 231, 232 (1995).

36. Divorce order may order sale of homestead to satisfy joint marital debts after husband discharged therefrom in bankruptcy. In re Marriage of Beardslee, 22 K.A.2d 787, 793, 922 P.2d 1128 (1996).

37. Express waiver of homestead exemption by executory contract unenforceable as contrary to public policy; involuntary debtor can use nonexempt property to acquire exempt property during period between when petition is filed and entry of order for relief ($250,000 addition to family home). In re Hodes, 235 B.R. 104, 107 (1999).

38. Debtor must intend to reinvest proceeds from homestead sale for homestead in state to qualify for exemption. In re Ginther, 282 B.R. 16, 18 (2002).

39. Debtors did not waive right to assert homestead exemption for funds prepaid for addition to residence. In re Hodes, 287 B.R. 561, 566 (2002).

40. Debtors properly claimed homestead exemption based on equitable interest in real property of self-settled living revocable trust. In re Kester, 339 B.R. 749 (2006).

41. Kansas homestead exemption allowed on 160-acre farmstead transferred to debtor five days before filing bankruptcy petition. In re Agnew, 355 B.R. 276, 286 (Bkrtcy D. Kan. 2006).

42. Objection to homestead exemption sustained; debtor did not manifest intent to use insurance proceeds for homestead. In re Letterman, 356 B.R. 540, 542, 543 (2006).

43. Before homestead interest may be abandoned there must be removal from property and intent not to return. In re Garstecki, 364 B.R. 95, 100 (2006).

44. Bankruptcy debtor may claim the homestead exemption for real estate in trust under the circumstances applicable. Redmond v. Kester, 284 K. 209, 210, 211, 216, 159 P.3d 1004 (2007).

45. Kansas homestead exemption is without dollar value limitation. In re Murphy, 367 B.R. 711, 714 (2007).

46. Mortgage payment on homestead within 1,215 days of bankruptcy not applicable to $125,000 cap on homestead exemption rights. In re Anderson, 374 B.R. 848, 852 (2007).

47. Cited; judgment lien under K.S.A. 60-2202 does not attach to or affect a homestead. Deutsche Bank Nat'l Trust Co. v. Rooney, 39 K.A.2d 913, 915, 920, 186 P.3d 820 (2008).

48. Paydown of homestead mortgage three months prior to bankruptcy held not to be with fraudulent intent. In re Anderson, 386 B.R. 315 (2008).

49. Cited in discussion of homestead involving abandonment and multiple structures on homestead. In re Hall, 394 B.R. 582, 588 (2008).

50. Cited; Kansas homestead laws allow married debtors to claim separate homesteads when debtors actually live apart. In re Hall, 395 B.R. 722, 730 (2008).

51. Married but separated persons may not each claim a separate homestead exemption. In re Sauer, 403 B.R. 722 (2009).

52. Chapter 7 divorced debtors entitled to claim each homestead exemption. In re Sauer, 403 B.R. 722 (2009).

53. Debtor was not required to live in home to claim homestead exemption, as long as debtor could show that his or her family occupied the home. In re Hall, 441 B.R. 680 (10 th Cir. BAP 2009).

54. Replacement windows installed are deemed personal property, not fixtures. In re Dalebout, 454 B.R. 158 (Bankr. D. Kan. 2011).

55. Wife's homestead interest in property remained intact when husband took title to grant home equity conversion mortgage with wife's assent. In re Peake, 480 B.R. 367 (Bkrtcy. D. Kan. 2012).

56. Kansas debtor must actually occupy property as homestead within a reasonable time of filing of bankruptcy petition in order to be entitled to an exemption. In re Fisher, 486 B.R. 200 (Bkrtcy. D. Kan. 2013).

57. A spouse who does not sign a promissory note but who signs mortgage securing other spouse's promissory note voluntarily consents to alienation of homestead rights. U.S. Bank NA v. McConnell, 48 K.A.2d 892, 305 P.3d 1 (2013).

58. A judgment that arises from repairs to a debtor's homestead does not attach to the residence and is not an exception to the Kansas homestead exception. In re Fakhari, 545 B.R. 303 (Bankr. D. Kan. 2016).

59. There is a fundamental difference between a statutory mechanic's lien and the constitutional and statutory Kansas homestead exemption, and the Kansas homestead exemption does not reference mechanic's liens as an exception. In re Fakhari, 554 B.R. 250, 258-59 (Bkrtcy. D. Kan. 2016).

60. Debtor occupying a family residence but not having an ownership interest in such residence cannot claim a separate homestead exemption because debtors were married on the date of their bankruptcy filing, creating one homestead interest regardless of whether they are estranged at the time or subsequently divorce. In re Vazquez, 606 B.R. 432, (Bkrtcy. D. Kan. 2019).