Kansas Elective Share: What a Surviving Spouse Gets When Disinherited by a Will

Discovering that your spouse's will leaves everything to their children from a prior marriage — or to anyone other than you — is one of the most devastating surprises a grieving spouse can face. In Kansas, a will can say whatever the deceased wanted it to say. But what a will says and what it can legally accomplish are two different things.

Kansas law prevents complete spousal disinheritance through the elective share statute. Here is what it guarantees and how to claim it.

What the Elective Share Is

The elective share, governed by K.S.A. 59-6a202, is a surviving spouse's statutory right to claim a percentage of the deceased spouse's estate regardless of what the will says. The surviving spouse "takes against the will" — meaning they reject the bequest (or lack of bequest) in the will and instead claim their statutory share under Kansas law.

The elective share does not override everything in a will. It claims a specific percentage of what Kansas defines as the "augmented estate," which is a broader measure than just the probate estate.

The Percentage Scale: Marriage Length Determines Your Share

Kansas ties the elective share percentage directly to how long the marriage lasted at the time of death. The longer the marriage, the larger the statutory entitlement.

A marriage of 15 years or more entitles the surviving spouse to 50% of the augmented estate — regardless of whether the will leaves them nothing.

For marriages lasting less than one year, the statute provides a supplemental amount rather than a percentage. The minimum guaranteed to a surviving spouse who is not otherwise provided for through other transfers is $100,000.

The Augmented Estate: Bigger Than You Think

The elective share applies to the augmented estate, not just the probate estate. This distinction is critical and is the most commonly misunderstood aspect of the statute.

Under K.S.A. 59-6a201, the augmented estate is calculated by adding together:

1. The probate estate — assets that pass through the will or intestacy
2. Non-probate transfers from the decedent — property transferred during life or at death outside probate, including joint tenancy accounts, payable-on-death designations, life insurance paid to third parties, and real estate with Transfer on Death deeds
3. Non-probate transfers to the surviving spouse — assets the surviving spouse already received outside probate (this is credited against the elective share, not added to it)

The legislative intent is clear: a spouse cannot deliberately drain assets out of the probate estate through non-testamentary transfers to impoverish a surviving spouse. If a decedent spent years moving assets into joint accounts with children, living trusts, or TOD deeds, those assets still count toward the augmented estate for elective share purposes.

Why This Matters Most in Blended Families

The elective share most commonly becomes contentious in second or later marriages where the deceased had children from a prior relationship. A surviving spouse of a 15-year second marriage who discovers they have been left out of the will in favor of adult stepchildren has a statutory right to 50% of the augmented estate — including assets those stepchildren believed they would receive through non-probate transfers.

Executors who distribute assets according to the will without first securing a written waiver from the surviving spouse face serious legal exposure. The surviving spouse has the right to contest any distribution made in violation of the elective share, and courts can and do order assets clawed back.

How to Invoke the Elective Share

Claiming the elective share requires a formal petition to the probate court. You cannot simply notify the executor in a letter. The process involves:

1. Filing a petition in the district court where probate is pending
2. The petition must identify the marriage length, the surviving spouse's entitlement percentage, and an accounting of the augmented estate
3. The court determines the augmented estate value, often requiring forensic accounting of non-probate transfers
4. Once the augmented estate is established, the court calculates the elective share and orders the estate to satisfy it

There are strict deadlines. In Kansas, the surviving spouse must elect within the time limits set by the probate court — typically this must happen within the early stages of the probate process. Consult a Kansas estate attorney immediately if you are considering invoking the elective share; waiting too long can permanently waive the right.

What a Surviving Spouse Can Waive

A surviving spouse can voluntarily waive the elective share, either in a prenuptial agreement executed before marriage or in a postnuptial agreement during the marriage. A valid waiver requires the spouse to have been provided full disclosure of the other's assets and to have signed voluntarily.

If the decedent's estate is arguing that a waiver exists, the burden is on the estate to prove it is valid and enforceable. Waivers extracted under pressure, without full disclosure, or in violation of other requirements can be challenged.

Medicaid Recipients and the Elective Share

There is a significant interaction between the elective share and Medicaid. If the surviving spouse is a Kansas Medicaid recipient or later applies for Medicaid, the state requires that they pursue their elective share. Failing to do so is treated as a failure to pursue an available resource, which can result in Medicaid ineligibility.

The Kansas Department of Health and Environment (KDHE) monitors estates where Medicaid benefits have been paid. A surviving spouse who declines the elective share for sentimental reasons — to preserve harmony with stepchildren, for example — may find themselves denied Medicaid coverage because they voluntarily forfeited an available asset.

The Kansas Survivor Benefits Navigator explains elective share timing, documentation, and how it interacts with Medicaid and KPERS benefits for surviving spouses who need to secure every entitlement. Get the full toolkit at /us/kansas/survivor-benefits/

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