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Kansas Surviving Spouse Rights
Pillar GuideKansas28 min read

Kansas Surviving Spouse Rights

A Kansas surviving spouse elects a share of the augmented estate on a marriage-length scale, plus homestead and allowances.

By Settled Editorial

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A Kansas will does not have the last word on what a surviving spouse receives. K.S.A. 59-6a202 gives a surviving spouse the right to elect a percentage of the augmented estate in place of what the will provides, and the percentage rises with the length of the marriage: 3% after one year, 30% at ten years, 50% at fifteen years or more. The homestead and the allowances sit on top of that share rather than inside it.

Three things about the Kansas answer catch people who read a generic summary first. The percentage applies to an augmented estate that reaches past the will and pulls in joint accounts, beneficiary designations and some gifts made in the last two years. Under one year of marriage there is no percentage at all, only a supplemental amount that tops the spouse up to $100,000. And the election is a right the spouse has to exercise on a six-month clock, so a spouse who waits takes what the will gives.

Every rule below was read on September 8, 2026 at the Kansas Office of Revisor of Statutes, the official publisher of the Kansas Statutes Annotated. Section numbers sit beside each rule so you can check them yourself.

This page answers what the surviving spouse can claim. For how a Kansas estate is opened, run and closed, read the Kansas probate process.

Three Protections, Three Statutes

Kansas splits the spouse's rights across three parts of the probate code, and each one works on its own terms.

  • The elective share. K.S.A. 59-6a201 through 59-6a217 give a right to elect a percentage of the augmented estate. This is the part that limits what a will can do.
  • The homestead. K.S.A. 59-401 and 59-402 protect the residence itself, measured in acres and not in dollars. K.S.A. 59-6a215 lets the spouse take a $75,000 homestead allowance instead.
  • The allowance to a spouse and minor children. K.S.A. 59-403 hands over named household property in kind and lets the court order a money allowance of up to $75,000 on top of it.

The relationship among them is written into the statute. K.S.A. 59-6a202(c) says that where the right of election is exercised, the surviving spouse's homestead allowance and family allowance are not charged against the elective share and supplemental amounts. They are in addition to them. K.S.A. 59-6a215 repeats the point for the homestead.

Two of the three have their own pages here. The named items taken in kind are covered in Kansas exempt property, and the money award is covered in the Kansas family allowance.

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The Elective Share Runs on the Length of the Marriage

K.S.A. 59-6a202(a)(1) gives the surviving spouse of a decedent who dies a Kansas resident the right to take an elective-share amount equal to the elective-share percentage of the augmented estate. That percentage comes off one schedule:

Length of the marriageElective-share percentage
Less than 1 yearSupplemental amount only
1 year but less than 23% of the augmented estate
2 years but less than 36%
3 years but less than 49%
4 years but less than 512%
5 years but less than 615%
6 years but less than 718%
7 years but less than 821%
8 years but less than 924%
9 years but less than 1027%
10 years but less than 1130%
11 years but less than 1234%
12 years but less than 1338%
13 years but less than 1442%
14 years but less than 1546%
15 years or more50%

Subsection (a)(2) handles couples who married each other more than once. All periods of marriage to each other are added together, and the periods between marriages are not counted.

Subsection (d) sends one case elsewhere. Where the decedent died a nonresident of Kansas, the surviving spouse's right to take an elective share in Kansas property is governed by article 8 of chapter 59 instead.

The Percentage Applies to the Augmented Estate

Read the schedule against the right noun. The measure is the augmented estate, and K.S.A. 59-6a203 assembles it from four separate pools:

  1. The decedent's net probate estate, K.S.A. 59-6a204. The probate estate reduced by funeral and administration expenses, the homestead or homestead allowance, family allowances and enforceable demands.
  2. The decedent's nonprobate transfers to others, K.S.A. 59-6a205. Property the decedent owned or owned in substance right before death that passed outside probate to someone other than the spouse: a fractional joint tenancy interest that went to a surviving joint tenant, an ownership interest in property or accounts that passed to another person at the death, life insurance proceeds on the decedent's life where the decedent owned the policy, and property subject to a presently exercisable general power of appointment.
  3. The decedent's nonprobate transfers to the surviving spouse, K.S.A. 59-6a206. The same categories, measured where the property landed with the spouse. Social Security is excluded.
  4. The surviving spouse's own property and nonprobate transfers to others, K.S.A. 59-6a207. What the spouse owned at the decedent's death, including the spouse's own fractional joint tenancy and coownership interests, plus what would have counted as the spouse's nonprobate transfers had the spouse been the one who died.

Section 59-6a205 also reaches backward in time. Subsection (b) picks up transfers made during the marriage where the decedent kept possession, enjoyment or income, or created a power over the property. Subsection (c) picks up transfers made during the marriage in the two years before the death, and (c)(3) sets the plainest number in the article: a gift to any one recipient counts to the extent the total transfers to that recipient in either of those two years went over $25,000.

K.S.A. 59-6a208 trims the total. Property drops out of the decedent's nonprobate transfers to others where the decedent received adequate and full consideration for the transfer, or where the surviving spouse joined in the transfer or consented to it in writing. Each category is reduced by enforceable demands against the included property. Where two provisions of the article reach the same property, it is counted once, under the provision that yields the greatest value.

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What the Spouse Actually Collects

The percentage sets a target figure. K.S.A. 59-6a209 decides where the money comes from, and it starts with property the spouse already has.

Applied first, under subsection (a): amounts in the augmented estate that pass or have passed to the surviving spouse by will or by intestate succession, plus the nonprobate transfers to the spouse under K.S.A. 59-6a206; amounts the spouse disclaimed that go to the spouse's own issue who are not the decedent's issue; the spouse's own property under K.S.A. 59-6a207, counted up to an applicable percentage that the statute fixes at twice the elective-share percentage; and the value of any real estate recovered under K.S.A. 59-505.

That second-to-last item does more work than its length suggests. At fifteen years of marriage the elective-share percentage is 50%, so the applicable percentage is 100% and the whole of the spouse's included property counts against the target before anyone else contributes.

Only after that does subsection (b) reach the decedent's probate estate and nonprobate transfers to others, apportioning liability among the recipients in proportion to what each received. Subsection (c) reaches the remaining nonprobate transfers if the amount is still unsatisfied.

The $100,000 Supplemental Amount

K.S.A. 59-6a202(b) sets a floor under the whole calculation. Where the sum of the spouse's own included property, the amounts already passing to the spouse, and the part of the elective-share amount payable from the probate estate and the nonprobate transfers to others comes to less than $100,000, the spouse is entitled to a supplemental elective-share amount equal to $100,000 minus that sum. It is payable from the probate estate and from the recipients of nonprobate transfers, in the order K.S.A. 59-6a209 sets.

For a marriage of less than a year, the supplemental amount is the entire elective share. The schedule gives no percentage at all below one year.

The figure moved recently. L. 2023, ch. 77, House Bill 2130, raised it from $50,000 to $100,000, and the revisor records the change as effective July 1, 2023. The same act raised the K.S.A. 59-403 allowance and the K.S.A. 59-6a215 homestead allowance from $50,000 to $75,000 apiece, and the K.S.A. 59-6a205 two-year gift figure from $10,000 to $25,000. Older summaries still print the pre-2023 numbers.

Six Months to File, and a Notice Due in Ten Days

Two clocks run, and they are wired to each other.

K.S.A. 59-2233(a) starts the first one. On the appointment and qualification of an administrator or executor, on the filing of a petition for an order refusing to grant letters of administration, or on the filing of an affidavit under K.S.A. 59-618a, the person responsible mails the surviving spouse a copy of the will, if there is one, together with a notice statement the statute writes out: that under K.S.A. 59-6a201 through 59-6a217 the spouse may have a right to take a share of property owned by the decedent at death and of transfers the decedent made before death. The mailing is due within 10 days, and proof goes to the court by affidavit. Subsection (b) waives the mailing where the surviving spouse is the petitioner or affiant and files the equivalent statement instead.

K.S.A. 59-6a211(a) runs the second. The election is made by filing a petition for the elective share in the court and mailing or delivering it to the personal representative, within six months after the date of death or within six months after the K.S.A. 59-2233 notice, whichever limitation expires later. The spouse then gives notice of the hearing to people interested in the estate and to the recipients whose interests the election would cut into.

Here is the sentence most summaries leave out. The same subsection says that where the petition is filed more than six months after the death, the decedent's nonprobate transfers to others are not included in the augmented estate. A late notice can extend the filing deadline and still shrink the measure, because the two rules run on different triggers.

K.S.A. 59-6a211(b) is the answer to that. Within six months after the death, the spouse may petition for an extension of time to elect. Where the spouse also gives notice of that petition to everyone interested in the nonprobate transfers within the same six months, the court may extend the deadline for good cause, and the nonprobate transfers stay in the augmented estate. Under subsection (c) the spouse may withdraw the petition any time before the court enters a final determination.

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Who Can File the Election

K.S.A. 59-6a212 splits this in two.

The right of election to the elective-share amount may be exercised by the surviving spouse, by the personal representative of a surviving spouse who has since died, or on behalf of a disabled surviving spouse by the court under K.S.A. 59-2234.

The right to the supplemental elective-share amount, the homestead or a statutory allowance has a wider list: the spouse, a conservator, an agent under a power of attorney, a guardian ad litem appointed for the spouse, or the court under K.S.A. 59-2234.

That last route has its own procedure. Where the surviving spouse is an incapacitated person, K.S.A. 59-2234 requires the court to appoint a commissioner, who values the provision made by the will against the value of the rights secured by statute and files a verified written report. After notice and a hearing on the report, the court makes whichever election is worth more to the spouse, and that election counts as though the spouse made it while fully competent.

The Homestead Has No Dollar Limit

K.S.A. 59-401 measures the Kansas homestead in land. Up to 160 acres lying outside the limits of an incorporated city, or one acre lying inside them, or a manufactured home or mobile home, occupied by the decedent and family at the time of the owner's death as a residence and still occupied by the surviving spouse and children afterward, together with all the improvements on it. That property is wholly exempt from distribution under the laws of Kansas and from payment of the decedent's debts.

Four things are carved out of the exemption in the same sentence: taxes on the property, obligations contracted for its purchase, obligations for the erection of improvements on it, and any lien given on it by the joint consent of both spouses.

Title still moves. The section closes by saying the title to the homestead property passes the same as the title to the decedent's other property, and K.S.A. 59-2235 puts that title in the final decree of distribution. Someone can inherit the house and still have no right to occupy it while the surviving spouse lives there.

K.S.A. 59-402 protects the occupancy from the other side. The homestead is not subject to forced partition unless the surviving spouse remarries, and not until all the children reach the age of majority.

One definition matters when the elective-share arithmetic starts. K.S.A. 59-6a201(k) provides that for purposes of article 6a, where the surviving spouse exercises the right to the homestead, the homestead is valued as a life estate interest in the equity of the real estate, in the manner provided by the federal estate tax at 26 U.S.C. 2031. That values the spouse's claim as a life interest in the equity rather than at the full market price of the house.

Never read a dollar figure into the Kansas homestead itself. The statute states no cap on value.

The $75,000 Homestead Allowance Is the Alternative

K.S.A. 59-6a215 gives a surviving spouse the homestead, or in place of it the option to elect a homestead allowance of $75,000. The allowance is exempt from and has priority over all demands against the estate, and it comes in addition to any share passing to the spouse by way of elective share.

The choice matters where the residence carries little equity, where the spouse has already moved, or where the estate holds cash and the house is going to be sold. It is one or the other, not both.

The Allowance to a Spouse and Minor Children

K.S.A. 59-403 opens with the words that fix its scope: when a resident of the state dies, testate or intestate. It applies whether or not there is a will, and it runs to the surviving spouse for the benefit of the spouse and the decedent's minor children during their minority.

Subsection (a) is a list of property taken in kind, with no value limit written anywhere in it: the wearing apparel, family library, pictures, musical instruments, furniture and household goods, utensils and implements used in the home, one automobile, and the provisions and fuel on hand needed to support the spouse and minor children for one year.

Subsection (b) is money, and the number is a ceiling rather than an entitlement. The court orders a reasonable allowance of not more than $75,000, in money or in other personal or real property at its appraised value, and the statute directs the court to fix the exact amount after taking into account the condition of the decedent's estate. A modest estate produces a modest allowance. Nobody is owed $75,000 by virtue of being a surviving spouse.

The closing paragraph of the section carries the rest of the rules. The property is not liable for the decedent's debts or other demands against the estate, except liens that existed at the time of death. Where there are no minor children the property belongs to the spouse; where there are minor children and no spouse it belongs to the children. The selection is made by the spouse if living, and otherwise by the guardian of the minor children. Where any of the minor children are not living with the surviving spouse, the court may divide the property as it finds equitable.

K.S.A. 59-2235 supplies the procedure. After the inventory and valuation have been filed, the spouse, or the children where there is no spouse, may petition the court to set apart the homestead and the K.S.A. 59-403 personal property. The petition gives the names, ages and relationships of the parties, describes the homestead claimed and the property selected, and states the valuation. The court may hear it with or without notice. Property set apart is delivered by the executor or administrator and is not treated as assets in their hands.

The debt shield in K.S.A. 59-403 and the priority in K.S.A. 59-6a215 are what put a surviving spouse ahead of ordinary creditors. Where the allowances sit against every other class of claim is set out in the Kansas classification of demands.

Taking Under the Will Does Not Waive the Homestead or the Allowance

K.S.A. 59-404 is one sentence and it prevents a common misreading. A surviving spouse who elects to take under the decedent's will, or who consents to it, does not waive the homestead right or the right to the allowance. The only exception is where it clearly appears from the will itself that the provision made for the spouse was intended to be in place of those rights.

So accepting a bequest does not by itself give up the house or the household property. The will has to say so, clearly, on its face.

Waiving These Rights by Agreement

K.S.A. 59-6a213(a) lets the right of election and the rights to the homestead, the homestead allowance and the family allowance be waived, wholly or partly, before or after marriage, by a written contract, agreement, consent to an instrument, or waiver the surviving spouse signed.

Subsection (b) sets the grounds for undoing one. A waiver is not enforceable where the surviving spouse proves either that the spouse did not sign it voluntarily, or that it was unconscionable when signed and, before signing, the spouse was not given a fair and reasonable disclosure of the decedent's property and financial obligations, did not expressly waive that disclosure in writing, and did not have and could not reasonably have had adequate knowledge of the decedent's property and debts. Under subsection (c) the court decides unconscionability as a matter of law.

Subsection (d) covers general language. A waiver of "all rights" or equivalent wording, and a complete property settlement entered after or in anticipation of separation or divorce, waives all elective-share benefits that would otherwise pass from the other spouse by intestate succession or under a will executed before the waiver. Waiving the homestead, the homestead allowance or the family allowance takes more than that: for documents executed on and after July 1, 2002, the document must clearly provide that each spouse understandably and knowledgeably waived them.

With No Will, the Share Is a Flat One-Half

The elective share answers what a will can do. Where there is no will, K.S.A. 59-504 states the share directly and no schedule applies. A spouse who survives with no child and no issue of a previously deceased child takes all of the property. Where a spouse and descendants both survive, the spouse takes one-half and K.S.A. 59-506 gives the other half to the children and the issue of deceased children. Kansas never asks whose children they are, and it sets no dollar figure at any point. The branch-by-branch answer is in Kansas intestate succession.

One more section deserves a mention because it appears nowhere else in the country in this form. K.S.A. 59-505 entitles a surviving spouse to receive one-half of all real estate the decedent was seized or possessed of at any time during the marriage and to the disposition of which the survivor did not consent in writing, by a will, or by an election to take under a will. Real estate sold on execution or judicial sale, or taken by other legal proceeding, is outside it, and so is real estate the decedent conveyed while the spouse was not a Kansas resident and never had been during the marriage. The same section routes the result back into the elective-share math by making the spouse's entitlement part of the spouse's property under K.S.A. 59-6a207, and K.S.A. 59-6a209(a) applies real estate recovered under it toward the elective-share amount. The section sits in the intestate succession article, and how it reaches any particular conveyance is a question for a Kansas attorney with the deed in hand.

Marriage, Divorce and the Will

K.S.A. 59-610 handles two life events and treats them differently. Where the testator marries after making a will "and has a child, by birth or adoption," the will is revoked. The statute joins the two with "and," so the section as written asks for both. Where the testator is divorced after making a will, only the provisions in favor of the divorced spouse are revoked, and the rest of the document stands.

Kansas also recognizes a spouse's consent to a will as its own question. K.S.A. 59-2224 lets the hearing on whether the consent of the spouse to the will is valid and binding be held separately from the hearing on the will itself, requires the testimony of at least two subscribing witnesses unless the will or consent is uncontested and self-proved, and lets any heir, devisee or legatee prosecute or oppose either determination.

The Community Property Trust Act Carves Out One Half

Kansas enacted the Kansas community property trust act on April 9, 2026, at 2026 Kan. Sess. Laws ch. 98. New section 7 says that on the death of a spouse, one half of the property held in a community property trust reflects the survivor's share and is not subject to the decedent's will or to the laws of succession, and it closes with a sentence that belongs on this page: the decedent spouse's one-half share is not included in the elective estate. The revisor has not assigned K.S.A. numbers to the act's new sections yet, which is why the citation is to the session-law chapter. What the trust has to contain and who can serve as trustee are covered in the Kansas trust guide.

Where These Rights Surface in a Kansas Estate

Each item below states what the statutes provide. None of it is a recommendation about a particular estate.

  • The notice arrives early or not at all. The K.S.A. 59-2233 statement is due within 10 days of the appointment or filing, so a surviving spouse who has heard nothing weeks into a case has a question to ask the court.
  • The six-month clock runs from the death for the augmented estate. Filing later than that drops the decedent's nonprobate transfers out of the measure unless the court granted an extension on a petition made inside six months.
  • The allowances are separate requests. The K.S.A. 59-403 property is set apart on a K.S.A. 59-2235 petition after the inventory is filed. The elective share is a different petition under K.S.A. 59-6a211.
  • Much of an estate never passes under the will. Beneficiary designations, joint tenancy, payable-on-death registrations and a recorded transfer-on-death deed move outside probate, and article 6a is the part of the code that counts them anyway.
  • Timing shapes the paperwork. The election, the creditor window and the inventory all run on their own schedules, laid out in the Kansas probate timeline and Kansas creditor claims.
  • Tax basis is a separate question from who takes the property. What a surviving spouse owes later turns on step-up in basis in Kansas.

When to Talk to a Kansas Lawyer

A licensed Kansas attorney earns the fee where:

  • the marriage is short, which puts the $100,000 supplemental amount rather than a percentage in play
  • the decedent made large gifts, funded a trust or changed beneficiary designations in the two years before the death
  • the couple signed a prenuptial or postnuptial agreement, or a property settlement during a separation
  • the homestead is the main asset and the choice between occupying it and taking the $75,000 allowance is close
  • a blended family sets children of an earlier marriage against the surviving spouse
  • the K.S.A. 59-2233 notice never arrived, or arrived long after the death
  • the surviving spouse lacks capacity, so the court would appoint a commissioner under K.S.A. 59-2234
  • real estate the decedent conveyed during the marriage raises a K.S.A. 59-505 question

This page organizes the statutes and the questions worth asking. Confirm anything that decides a particular estate with the district court handling it or with a licensed Kansas attorney.

Frequently Asked Questions

Can a Kansas will disinherit a surviving spouse?

Not without the spouse's cooperation. K.S.A. 59-6a202 gives a surviving spouse a right to elect a percentage of the augmented estate instead of taking what the will provides. The percentage is set by how long the marriage lasted, from 3% after one year up to 50% at fifteen years or more. The right has to be exercised. Under K.S.A. 59-6a211 the spouse files a petition for the elective share in the court and mails or delivers it to the personal representative, and a spouse who files nothing takes only what the will gives.

How much is the Kansas elective share?

It is a percentage of the augmented estate keyed to the length of the marriage under K.S.A. 59-6a202. The schedule runs 3% at one year, 6% at two, and up in three-point steps to 30% at ten years, then 34%, 38%, 42%, 46%, and 50% at fifteen years or more. Under one year of marriage there is no percentage at all, only the supplemental amount. Where the spouses married each other more than once, all periods of marriage are added together and the gaps between them are not counted.

What is the Kansas augmented estate?

K.S.A. 59-6a203 builds it from four parts: the decedent's net probate estate under K.S.A. 59-6a204, the decedent's nonprobate transfers to other people under K.S.A. 59-6a205, the decedent's nonprobate transfers to the surviving spouse under K.S.A. 59-6a206, and the surviving spouse's own property and nonprobate transfers under K.S.A. 59-6a207. Joint tenancy interests, payable-on-death accounts, life insurance and some gifts made in the two years before the death are pulled in. The elective share is never a percentage of the probate estate alone.

What is the deadline to claim the Kansas elective share?

K.S.A. 59-6a211(a) sets it at six months after the date of death, or six months after the K.S.A. 59-2233 notice of the right to the elective share, whichever limitation expires later. One trap sits inside the same subsection: where the petition is filed more than six months after the death, the decedent's nonprobate transfers to others drop out of the augmented estate. A spouse who petitions within six months of the death for more time, with notice to the people affected, can ask the court to extend the deadline for good cause and keep those transfers in the measure.

What is the Kansas homestead allowance?

K.S.A. 59-6a215 entitles a surviving spouse to the homestead, or in place of it a homestead allowance of $75,000. The allowance is exempt from and has priority over all demands against the estate, and it comes in addition to any share passing to the spouse by way of elective share. The homestead itself carries no dollar limit. K.S.A. 59-401 measures it in land: up to 160 acres outside an incorporated city, one acre inside one, or a manufactured or mobile home.

Can spousal rights be waived in a Kansas prenuptial agreement?

Yes, in whole or in part. K.S.A. 59-6a213(a) allows the right of election and the rights to the homestead, the homestead allowance and the family allowance to be waived before or after marriage by a written contract, agreement, consent or waiver the surviving spouse signed. Subsection (b) makes a waiver unenforceable where the spouse proves it was not signed voluntarily, or that it was unconscionable when signed and the spouse got no fair and reasonable disclosure of the decedent's property and debts, never waived that disclosure in writing, and had no adequate knowledge of it.

Sources:

It is not legal advice.

Information current as of September 8, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Kansas can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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