An Act concerning the elective share of the surviving spouse; amending K.S.A. 59-505, 59- 6a201, 59-6a204, 59-6a205, 59-6a207, 59-6a215 and 59-2233 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 59-505 is hereby amended to read as follows: 59- 505. Also Except as provided further, the surviving spouse shall be enti- tled to receive one-half of all real estate of which the decedent at any time during the marriage was seized or possessed and to the disposition whereof the survivor shall not have consented in writing, or by a will, or by an election as provided by law to take under a will, except such real estate as has been sold on execution or judicial sale, or taken by other legal proceeding: Provided, That. The surviving spouse shall not be en- titled to any interest under the provisions of this section in any real estate of which such decedent in his or her such decedent's lifetime made a conveyance, when such spouse at the time of the conveyance was not a resident of this state and never had been during the existence of the marriage relation. The spouse's entitlement under this section shall be included as part of the surviving spouse's property under K.S.A. 59-6a207, and amendments thereto.

Sec. 2. K.S.A. 59-6a201 is hereby amended to read as follows: 59- 6a201. As used in this section:

(a) ``Decedent's nonprobate transfers to others'' means the dece- dent's nonprobate transfers to persons, other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors, that are included in the augmented estate under K.S.A. 59-6a205, and amendments thereto.

(b) ``Fractional interest in property held in joint tenancy with the right of survivorship,'' whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the de- nominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the de- cedent was not a joint tenant, is the number of joint tenants, unless there is proof of some other proportional ownership, legal or equitable.

(c) ``Marriage,'' as it relates to a transfer by the decedent during mar- riage, means any marriage of the decedent to the decedent's surviving spouse.

(d) ``Nonadverse party'' means a person who does not have a sub- stantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that such person possesses respecting the trust or other property arrange- ment. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

(e) ``Power'' or ``power of appointment'' includes a power to designate the beneficiary of a beneficiary designation.

(f) ``Presently exercisable general power of appointment'' means a power of appointment under which, at the time in question, the decedent, whether or not the decedent then had the capacity to exercise the power, held a power to create a present or future interest in the decedent's self, the decedent's creditors, the decedent's estate, or creditors of such de- cedent's estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.

(g) ``Probate estate'' means property that would pass by intestate suc- cession if the decedent died without a valid will.

(h) ``Property'' includes values subject to a beneficiary designation.

(i) ``Right to income'' includes a right to payments under a commer- cial or private annuity, an annuity trust, a unitrust or a similar arrange- ment.

(j) ``Transfer'' as it relates to a transfer by or of the decedent, includes (1) an exercise or release of a presently exercisable general power of appointment held by the decedent, (2) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (3) an exercise, release, or lapse of a general power of appointment that the decedent created in the decedent's self and of a power described in sub- section (b)(2) of K.S.A. 59-6a205, and amendments thereto, that the de- cedent conferred on a nonadverse party.

(k) ``Value of the homestead.'' For the purposes of article 6a of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, where the surviving spouse exercises the right to the homestead, the homestead shall be valued as a life estate interest in the equity of the real estate comprising the homestead in the manner provided by the federal estate tax in 26 U.S.C. 2031, and amendments thereto.

Sec. 3. K.S.A. 59-6a204 is hereby amended to read as follows: 59- 6a204. The value of the augmented estate includes the value of the de- cedent's probate estate, reduced by funeral and administration expenses, homestead or homestead allowance, family allowances and enforceable demands.

Sec. 4. K.S.A. 59-6a205 is hereby amended to read as follows: 59- 6a205. The value of the augmented estate includes the value of the de- cedent's nonprobate transfers to others, not included under K.S.A. 59- 6a204, and amendments thereto, of any of the following types, in the amount provided respectively for each type of transfer.

(a) Property owned or owned in substance by the decedent imme- diately before death that passed outside probate at the decedent's death. Property included under this category consists of:

(1) Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent that such property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.

(2) The decedent's fractional interest in property held by the dece- dent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent that such fractional interest passed by right of survivorship at the decedent's death to the surviving joint tenant other that than the decedent's surviving spouse.

(3) The decedent's ownership interest in property or accounts passing to another upon decedent's death. The amount included is the value of the decedent's ownership interest, to the extent that the decedent's own- ership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

(4) Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy imme- diately before death or if and to the extent that the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent that they were payable at the dece- dent's death to or for the benefit of any person other than the decedent's estate or surviving spouse;

(b) property transferred in any of the following forms by the decedent during marriage:

(1) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent that the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent that such fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse.

(2) Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, the creditors of the decedent, the decedent's estate, or creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent that the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent that the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse. If the power is a power over both income and property and the preceding sentence pro- duces different amounts, the amount included is the greater amount.

(c) Property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:

(1) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under subparagraph (a)(1), (2), or (3), or under subparagraph (c)(2), if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the prop- erty that would have been included under those subparagraphs, if the property were valued at the time that the right, interest, or power ter- minated, and is included only to the extent that the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse. As used in this subparagraph, ``termination,'' with respect to a right or interest in prop- erty, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in paragraph (a)(1), ``termination'' occurs when the power terminated by exercise or release, but not oth- erwise.

(2) Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under subparagraph (a)(4) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent that the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

(3) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse. The amount included is the value of the transferred property to the extent that the aggregate transfers to any one donee in either of the two years exceeded $10,000.

Sec. 5. K.S.A. 59-6a207 is hereby amended to read as follows: 59- 6a207. (a) Except to the extent included in the augmented estate under K.S.A. 59-6a204 or K.S.A. 59-6a206, and amendments thereto, the value of the augmented estate includes the value of:

(1) Property that was owned by the decedent's surviving spouse at the decedent's death, including:

(A) The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;

(B) the surviving spouse's ownership interest in property or accounts held in coownership registration with the right of survivorship; and

(C) property that passed to the surviving spouse by reason of the decedent's death, but not including, the spouse's right to homestead or homestead allowance, family allowance, or payments under the federal social security system; and

(2) property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests include under subparagraphs (a)(1)(A) and (B), had the spouse been the decedent.

(b) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subparagraphs (a)(1)(A) and (B), the values of the spouse's fractional and ownership interests are determined im- mediately before the decedent's death if the decedent was then a joint tenant or coowner of the property or accounts. For purposes of subpar- agraph (a)(2), proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under subsection (a)(4) of K.S.A. 59-6a205, and amendments thereto, are not valued as if such spouse were deceased.

(c) The value of property included under this section is reduced by enforceable demands against the surviving spouse.

Sec. 6. K.S.A. 59-6a215 is hereby amended to read as follows: 59- 6a215. Where there is no homestead or the homestead is valued at less than $25,000 A decedent's surviving spouse is entitled to the homestead, or in lieu thereof the surviving spouse may elect to receive a homestead allowance not to exceed of $25,000. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to $25,000 divided by the number of minor and dependent children of the decedent. The homestead or home- stead allowance is exempt from and has priority over all demands against the estate. The homestead or homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share.

Sec. 7. K.S.A. 59-2233 is hereby amended to read as follows: 59- 2233. Except where the court has previously determined the validity and binding consent to a will, when a will is admitted to probate 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 court shall forthwith transmit to the surviving spouse a certified copy thereof cause a copy of the will, if any, together with a notice statement to be mailed to the surviving spouse stating: ``Under K.S.A. 59-6a201 through 59-6a217, and amendments thereto, you may have valuable rights to take a share of conveyances 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.'' If such spouse has consented to the will, as provided by law, such consent shall control; otherwise such spouse shall be deemed to have elected to take under the testator's will unless such spouse shall have filed in the district court, within six months after the notice of the right to the elective share, an instrument in writing to take by the laws of intestate succession. If such spouse files an election before the inventory and valuation of the estate is filed, the election shall be set aside upon petition of the spouse made within 30 days after the filing of the inventory and valuation. For good cause shown, the court may permit an election within such further time as the court may deter- mine, if a petition therefor is made within such period of six months. Such notice shall be mailed within 10 days of the qualification of the adminis- trator 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.

Sec. 8. K.S.A. 59-505, 59-6a201, 59-6a204, 59-6a205, 59-6a207, 59- 6a215 and 59-2233 are hereby repealed.

Sec. 9. This act shall take effect and be in force from and after its publication in the statute book.

Approved March 22, 1996.