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|February 5, 2016, Appellate Court Digests|
Kansas Court of Appeals - Civil
APPEAL AND REVIEW; ESTATES; JURISDICTION; STATUTORY INTERPRETATION; and WILLS
FACTS: Marilyn Cross, the surviving spouse of Charles Cross, sought to exercise her right to an elective share of his estate, despite the fact that, in 1992, she consented in writing to take under the will instead of through her statutory right to an elective share. At the time of his death, Marilyn and Charles had been married for 26 years and he had 3 children from a prior marriage. Under the will, Marilyn was entitled to the marital residence, all household goods, furniture, jewelry, and personal effects, plus any automobile owned at the time of death. The balance of the estate went to the children. Marilyn was also the surviving cotrustee of a Revocable Trust Indenture, which paid her quarterly net income during her lifetime. Marilyn did not dispute that she voluntarily signed the consent to the will, and she acknowledged that by signing the consent, Charles' sons would inherit Charles' business and farm. Upon Charles' death, counsel for the estate failed to serve Marilyn with the required Notice to Surviving Spouse of Elective Share Right. Two years after the Journal Entry of Final Settlement was entered, Marilyn was allowed to set aside the journal entry. She subsequently filed a Petition for Elective Share of Surviving Spouse, in which she denied having waived her right to take the elective share. The estate sought to enforce her prior consent to the will. The district court ruled that Marilyn's prior waiver of the spousal elective share was still valid, notwithstanding the subsequent expansion of statutory spousal share rights. Marilyn appealed that decision.
ISSUES: (1) Appellate jurisdiction, (2) Validity of Prior Waiver of the Statutory Spousal Elective Share
HELD: The order refusing to allow Marilyn to take her elective share was a final decision, since it was the final determination of Marilyn's interest in Charles' estate. Accordingly, the court has jurisdiction to consider the issue on appeal. Although the 1995 amendments to the probate code changed the way the spousal elective share is calculated, the validity of a consent to waiver is determined at the time the consent is given, and the 1995 statutory amendments did not substantively change the consent procedure. Therefore, the fact that Marilyn's legal share would have been different under the legislative amendments is irrelevant. The district court properly determined that Marilyn's 1992 consent to Charles' will was a valid waiver of the elective share.
STATUTES: K.S.A. 59-6a202, -6a203, -6a208, -6a213; K.S.A. 1992 Supp. 59-602, -603
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