Understanding Your Right to Elect a Life Estate Instead of an Intestate Share in Kansas

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance regarding your specific situation.

Detailed Answer

Under Kansas intestacy law, a surviving spouse may elect to receive a life estate in the decedent’s real property rather than the statutory intestate share in fee simple. Kansas Statute Annotated § 59-505 outlines the share of a surviving spouse when the decedent dies without a will. Subsection (b)(2) provides that, when there are surviving descendants, the spouse can choose a life estate in all real property instead of the monetary and percentage‐based share:

“Upon petition of the surviving spouse filed within six months after the appointment of the personal representative, the court shall allow the spouse to take a life estate in the decedent’s real property in lieu of the intestate share in fee simple.” K.S.A. 59-505(b)(2).

Key points:

Who qualifies: Only a surviving spouse may make this election.
Property covered: All Kansas real estate owned solely by the decedent at death.
Election deadline: File a written election with the probate court within six months of the personal representative’s appointment.
Effect of election: The spouse holds a life estate; the remainder interests pass to heirs as prescribed by law when the spouse dies or the life estate is otherwise terminated.
Court approval: The election becomes effective upon court order.

For estates with no surviving descendants, the spouse may already be entitled to the entire estate under K.S.A. 59-505(a). In that case, an election is unnecessary because the spouse’s intestate share covers both real and personal property in fee simple.

If the surviving spouse elects the life estate option, the personal representative will adjust distributions of personal property and cash allowances (including the family allowance under K.S.A. 59-507) accordingly. Spouses should review how this election interacts with homestead rights and the family allowance (K.S.A. 59-507).

Helpful Hints

Record your election in writing and file it in the probate case file within the six-month window.
Confirm with the court clerk when the personal representative was appointed to track the deadline.
Understand that a life estate carries responsibilities for taxes, maintenance, and insurance on the property.
Evaluate how a life estate impacts your long-term estate plan and the interests of remainder beneficiaries.
Consult a probate attorney to ensure the election is properly drafted and entered by the court.