Beyond Moribund: the Case for Repeal of K.s.a. 59-505
| Citation | Vol. 92 No. 1 Pg. 23 |
| Publication year | 2023 |
| Pages | 23 |
K.S.A. 59-505
Beyond Moribund: The Case for Repeal of K.S.A. 59-505
By Tim O'Sullivan
Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Kansas Bar Journal, or its Board of Editors. The material is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment.
Author's note: Thank you to my fellow colleagues who provided feedback on this article, including Casey Law and Stewart Weaver, to Lauren Page and Robert Ryu for their research assistance, and Madison Moore for her editing and citation contributions.
"Dower: An ancient, archaic, common-law interest created to protect helpless women"[1]K.S.A. 59-505 provides in pertinent part as follows:
[T]he surviving spouse shall be entitled 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. The surviving spouse shall not be entitled to any interest under the provisions of this section in any real estate of which such decedent in 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.[2]
K.S.A. 59-505 (below, sometimes just "59-505") is an anachronistic, hidebound law enacted in 1939 that has endured to this day.[3] It was retained in the law even following the passage of the Kansas Spousal Elective Share Act (the "Act") in 1994, which was taken from the 1990 version of the elective share law embodied in the Uniform Probate Code.[4] The only change made to 59-505 occurred in 1996, with the addition of the last sentence.[5] That sentence did not diminish the primary import of the statute; it in effect simply reduced the amount of the elective share that a surviving spouse would be otherwise entitled to by the amount the surviving spouse was able to recover thereunder. The Act itself revolutionized the entire nature and degree of statutory spousal survivorship rights in Kansas. At the time of 59-505's passage up to the passage of the Act more than five decades later, the surviving spouse, by "electing against the will," was entitled to a forced inheritance of one-half of the probate estate, which was the same intestate share a surviving spouse would receive when the deceased spouse also left at least one surviving descendant, thereby relinquishing all property the surviving spouse was otherwise entitled to under the will of the predeceased spouse.[6] Being strictly mechanical in nature, in establishing the survivorship amount, this prior spousal right did not consider such equitable factors as the length of the marriage, the value of the property the surviving spouse owned at the time of the predeceased spouse's death, and the value of the property the surviving spouse received as a result of the death of the predeceased spouse, whether under the probate estate or through non-probate transfers. Before the enactment of the Act, despite its literal wording, this prior right had been extended by the courts to assets held in revocable trusts and IRAs.[7] It did not consider any lifetime property transfers of the predeceased spouse, even with respect to transfers in the immediacy of death.[8] This right was in addition to the spousal rights to real property under 59-505, unless a surviving spouse had waived this right before the predeceased spouse's death or had otherwise consented to the provisions of the predeceased spouse's estate plan.
As opposed to prior law, the Act much more equitably determines a surviving spouse's elective share right to the predeceased spouse's property by factoring in the foregoing previously unconsidered factors in the elective share amount.[9]Conceptually speaking, the Act provides for a maximum percentage right of 50% of all subject property of both spouses, however received or already possessed, at the time of the predeceased spouse's death (the "augmented estate").[10]The Act also, with limited exceptions, covers property that the predeceased spouse transferred within two years of death.[11]The longer the marriage, the greater the percentage that the surviving spouse can elect to receive.[12] The maximum elective share percentage of 50% is reached upon the couple having been married for at least 15 years.[13]
As thoroughly discussed elsewhere, unless duly waived under Kansas law, in addition to including a spousal support element by providing for a minimum amount for a surviving spouse even if the elective share would otherwise be zero, the Act incorporates a partnership theory of marriage, acknowledging the contributions each spouse makes to the marriage and the marital estate by, in essence, fully phasing in the equal ownership of an all spousal property concept for elective share purposes after 15 years of marriage.[14]The minimum "support allowance" of $50,000 in the Act is augmented by any spousal allowance to which the surviving spouse would be statutorily entitled under Kansas probate law.
The complex nature of determining the actual amount of the spousal elective share under the Act is well beyond the scope of this Article. The reader is best referred to a prior Journal article on the Act published not long after its enactment.[15]Nonetheless, as elaborated upon below, because of such foregoing equitable factors coming into play, the elective share amount in the vast majority of situations is not only greatly reduced from its potential maximum 50% amount of the augmented estate, but is also in the majority of situations, even in the absence of a waiver, actually zero. Moreover, under the Act, as there is no required alternative election under it to "take under the will," such rights are in addition to any rights under 59-505, albeit amounts recoverable thereunder correspondingly reduce any amounts otherwise allowable.
The discussion that follows analyzes the purpose of 59-505, the problems it poses, its inequities, its failure to have a cogent purpose following the passage of the Act, and its inconsistency both with the purpose and principles of the Act and with Kansas being a separate property law state. Before delving into this discussion, it is important to point out that even with a repeal of 59-505, a surviving spouse's homestead rights would remain protected both statutorily (under K.S.A. 60-2301) and constitutionally.[16] Article 15, Section 9 of the Kansas Constitution provides not only creditor protection for the homestead (one acre within a city and 160 contiguous acres of farmland outside a city), but also prohibits its alienation by a married person without the consent of a spouse.[17] K.S.A. 60-2301 statutorily codifies this constitutional provision.[18]Consequently, repealing 59-505 would not remove the constitutional and statutory protection of spouses with respect to homestead property. Thus, even if 59-505 is repealed, spousal consent will remain obligatory for one spouse to be able to convey homestead property free of the other spouse's constitutional and statutory homestead rights.
Analysis and Discussion
Apparently, when the Act was proposed, it was decided it would appear without much forethought, that all that was needed to reconcile 59-505 with the provisions of the Act was to provide for an offset against the elective share amount for amounts recovered under 59-505. But reflection and experience have shown that the Act itself rendered the retention of 59-505 unnecessary, inequitable, and its retention inapposite with the Act's objectives. For reasons more fully enunciated below, the author and many other attorneys have concluded that it should not be retained in Kansas. The KBA Real Estate, Probate and Trust Section, the KBA Title Standards Committee, the KBA Legislative Committee, and the KBA Board of Governors have all called for its repeal.
Purpose of 59-505 Rendered Moot with the Passage of the Act
The spousal inheritance right to real property that 59505 was designed to protect ceased to exist immediately with the passage of the Act. Unlike the Act, outside of this statute relating solely to real property conveyances, prior law provided little to no protection or redress for a surviving spouse with respect to property passing through beneficiary designations or other types of property conveyed by a predeceased spouse without such surviving spouse's consent, thereby substantially vitiating the efficacy in a high percentage of circumstances a surviving spouse's election against the will with respect to such property.[19] Absent a spousal consent, 59-505 in effect statutorily ensured such real property was either in the probate estate of the predeceased spouse subject to a surviving spouse's election against the will to receive one-half of all probate property, including real property, or preserved the surviving spouse's right to recover one-half of real property disposed of without the surviving spouse's consent.[20] Consequently, such erstwhile survivorship right was afforded some protection by 59-505, but only regarding real property.
By the time of the passage of the Act, however, the primarily rural and agrarian economy that was the environs when 59-505 was enacted had long since departed the Kansas landscape.[21] When 59-505 was enacted, a much...
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