Because marriage is considered a partnership under Kansas law, the law provides a minimum amount of assets that the surviving spouse can claim against the estate of the deceased spouse if the will and other non-probate transfers provide less. The amount of property the surviving spouse is entitled to is called the “elective share” and is determined based on the length of the marriage. The surviving spouse must claim the elective share by petitioning the court, because it is not automatic.
Pursuant to K.S.A. 59-6a,202, the following chart shows how the elective share is calculated:
Length of Marriage: Elective Share:
Less than 1 year Supplemental amount only
1 year but less than 2 years 3% of the augmented estate
2 years but less than 3 years 6% of the augmented estate
3 years but less than 4 years 9% of the augmented estate
4 years but less than 5 years 12% of the augmented estate
5 years but less than 6 years 15% of the augmented estate
6 years but less than 7 years 18% of the augmented estate
7 years but less than 8 years 21% of the augmented estate
8 years but less than 9 years 24% of the augmented estate
9 years but less than 10 years 27% of the augmented estate
10 years but less than 11 years 30% of the augmented estate
11 years but less than 12 years 34% of the augmented estate
12 years but less than 13 years 38% of the augmented estate
13 years but less than 14 years 42% of the augmented estate
14 years but less than 15 years 46% of the augmented estate
15 years or more 50% of the augmented estate
The “augmented estate” consists of most of the decedent’s assets and is defined as “the sum of the values of all property that constitute the decedent’s net probate estate, the decedent’s non-probate transfers to others, the decedent’s non-probate transfers to the surviving spouse, and the surviving spouse’s property and non-probate transfers to others.” K.S.A. 59-6a, 203.
Practically speaking, this means that one spouse cannot simply write the other spouse out of his or her will because to do so would be to deprive the other spouse of what he or she is legally entitled to – their elective share. However, spouses may waive their elective share by a prenuptial (before marriage) or postnuptial (after marriage) agreement. Certain requirements must be met for a waiver to be legally valid. For example, the surviving spouse must have had full knowledge of the decedent’s estate and the rights he or she was giving up.
If you find yourself in a situation where your deceased spouse wrote you out of the will or otherwise deprived you of your elective share, you should contact an attorney and act quickly by filing a petition for your elective share within six months of your spouse's death.