In Re the Estate of Cross

No. 113,266
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Estate of
CHARLES V. CROSS, Deceased.
SYLLABUS BY THE COURT
1.
On the facts of this case, the district court's order finding that the surviving spouse
was not entitled to an elective share of decedent husband's estate constituted a final
determination of the surviving spouse's interest in the decedent husband's estate and thus
constitutes a final appealable order.
2.
Interpretation of a statute is a question of law. An appellate court is not bound by
the district court's interpretation of a statute and is obligated to interpret a statute de novo.
3.
Effective January 1, 1995, the Kansas Probate Code was amended to change the
manner in which the spousal elective share is calculated. As amended, a surviving spouse
now has the statutory right to take an elective share percentage of the decedent's
augmented estate under K.S.A. 59-6a202. The augmented estate is the sum of the values
of all property that constitutes the decedent's net probate estate, the decedent's nonprobate
transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the
surviving spouse's property and nonprobate transfers to others. K.S.A. 59-6a203.
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4.
Both before and after January 1, 1995, a surviving spouse had the right to waive
any or all of the elective share rights to which the surviving spouse would be statutorily
entitled.
5.
A valid waiver by a surviving spouse of a right of election against a will, to the
homestead, homestead allowance, exempt property, and family allowance, or all of them,
must meet the following requirements: (1) It must be in the form of a written contract,
written agreement, or written consent to an instrument; (2) it must be signed by the party
waiving the right; (3) it must have been executed voluntarily; (4) the waiving party must
have been provided a fair and reasonable disclosure of the decedent's property; and (5)
the waiving party must have adequate knowledge of the decedent's property. K.S.A. 59-
6a213(a), (b).
6.
The legal sufficiency of a spousal consent is to be determined as of the time the
document evidencing consent was made.
7.
On the facts of this case, the consent and waiver signed by a surviving spouse
before 1995 remains a valid and enforceable waiver of all spousal elective share rights,
notwithstanding amendments made to the Kansas Probate Code in 1995 changing the
manner in which the spousal elective share is calculated.
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Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed February 5, 2016.
Affirmed.
Rachael K. Pirner, Paula D. Langworthy, and Theron E. Fry, of Triplett, Woolf & Garretson,
LLC, of Wichita, for appellant Marilyn G. Cross.
Lora M. Jennings, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Overland Park, and
Brent A. Mitchell, of the same firm, of Wichita, for appellees Matthew Cross and Barry Cross.
Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.
STANDRIDGE, J.: Marilyn G. Cross sought to exercise her right to an elective share
of the estate of her deceased husband Charles V. Cross pursuant to K.S.A. 59-6a202 and
K.S.A. 59-6a212. Although conceding she signed a written consent in 1992 to take under
Charles' will in lieu of exercising her statutory right to an elective share, Marilyn argues
her written consent is no longer enforceable given the Kansas Legislature subsequently
modified the manner in which the spousal elective share is calculated. Two of Charles'
sons, as coexecutors of his estate (the Coexecutors), challenged Marilyn's right to an
elective share, arguing the consent Marilyn signed in 1992 remains enforceable. The
district court agreed with the Coexecutors, holding that Marilyn's 1992 consent to
Charles' will constituted a waiver of the subsequently modified elective share rights
under K.S.A. 59-6a213.
FACTS
Charles and Marilyn were married on February 4, 1983, and were married for 26
years at the time of Charles' death. Charles had three children from a prior marriage:
Matthew Cross, Rickert L. Cross, and C. Barry Cross. Marilyn had four children from a
prior marriage.
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During their marriage, Marilyn maintained her own separate checking account and
her own separate investment account. Charles maintained a separate money market
account that he used for farm operations.
Charles signed his Last Will and Testament on July 20, 1992. The Last Will and
Testament provided that Charles willed, devised, and bequeathed to Marilyn the
residence they were living in at the time of his death; all of the household goods,
furniture, jewelry, and personal effects; and any automobile owned at the time of his
death. The residue of his estate was left to his three sons.
On July 20, 1992, Charles also executed a Revocable Trust Indenture as grantor
and trustee. Charles and Marilyn were named as cotrustees of the Charles V. Cross Trust.
Marilyn signed the Revocable Trust Indenture as cotrustee on September 4, 1992.
Pursuant to the Revocable Trust Indenture, the cotrustees were to invest and reinvest the
property and pay the net income to the grantor (Charles) during his lifetime. Upon the
grantor's death, the surviving cotrustee (Marilyn) was required to pay all of the net
income to Marilyn at least quarterly during her natural lifetime. Upon the death of
Marilyn, her estate would be entitled to all of the accrued income not paid prior to her
death. The Trust also would be required to distribute $100,000 from the corpus of the
Trust to each of Marilyn's children. The remainder of the trust estate was to be divided
equally among Charles' children. As set forth in the Revocable Trust Indenture, Charles
signed, transferred, and delivered to the cotrustees certain property as set forth in Exhibit
A to the Trust, which identified numerous assets.
On September 4, 1992, Marilyn signed a Consent of Wife to Charles' Last Will
and Testament. Marilyn does not dispute that she signed the consent having sound mind
and memory; acting under her own free will and accord; and being under no undue
influence, duress, or restraint. Marilyn also does not dispute that when she signed the
consent she understood she would receive (1) the income from the Trust established by
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Charles on which she was named the cotrustee and lifetime beneficiary, (2) life insurance
benefits, (3) beneficiary proceeds from an IRA account, and (4) the property identified in
the will itself. Finally, Marilyn does not dispute that by signing the consent she
understood Charles' sons would inherit his business and his farm. Marilyn later drafted a
separate will for herself, to which Charles agreed and consented.
Charles died testate in El Dorado, Kansas, on September 8, 2009, leaving Marilyn
as the surviving spouse. On September 25, 2009, Barry and Matthew filed a Petition for
Probate of the Will and Appointing Executor Under the Kansas Simplified Estate Act.
Contrary to the provisions set forth in K.S.A. 59-2233, neither the Coexecutors nor their
counsel provided Marilyn with the required Notice to Surviving Spouse of Elective Share
Right during the probate proceedings settling Charles' estate. On April 22, 2010, a
Journal Entry for Final Settlement was entered. Marilyn received the household and
personal property items as stated in Charles' will.
On May 3, 2012, Marilyn filed a Petition to Vacate Journal Entry of Final
Settlement and to Allow Petitioner to File Petition for Elective Share of Surviving
Spouse. The court entered a journal entry finding that the Journal Entry of Final
Settlement dated April 22, 2010, was void and therefore set aside. Marilyn was permitted
to file a Petition for Elective Share of Surviving Spouse, which she later filed on
February 14, 2014.
In her Petition for Elective Share of Surviving Spouse, Marilyn argued she had
"not waived her right to take the elective share, homestead and family allowance or any
other renounced benefits that would otherwise pass to a surviving spouse by agreement or
otherwise." Relying on this argument, Marilyn claimed she was entitled to her statutory
elective share percentage of Charles' augmented estate, the homestead, and a spousal
allowance. In response to Marilyn's petition, the Coexecutors filed a Petition for
Determination of Validity and Effect of Consent of Wife.
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On December 16, 2014, the court issued its ruling on the Coexecutors' Petition for
Determination of Validity and Effect of Consent of Wife. Applying K.S.A. 59-6a213, the
court found Marilyn expressly and voluntarily agreed to take under Charles' will and
waived her right to take the statutory spousal elective share, her homestead or homestead
allowance, and her spousal allowance. As a matter of law, the court then held that
Marilyn's 1992 consent to take under Charles' will in lieu of any statutory spousal
elective share rights to which she was entitled remained an enforceable waiver at the time
Charles died, notwithstanding the fact that Marilyn executed it before passage of a new
law providing spousal elective share rights that did not exist under prior law.
JURISDICTION
Before reaching the merits of Marilyn's arguments, we first address a jurisdictional
issue raised by the Coexecutors. In a response to Marilyn's docketing statement filed with
this court, the Coexecutors questioned whether Marilyn was appealing from a final order
as required. Although the appeal was retained, this court asked the parties to brief the
jurisdictional issue.
The parties agree that this issue was recently resolved by the Kansas Supreme
Court in In re Estate of Butler, 301 Kan. 385, 343 P.3d 85 (2015), where the court
considered whether a probate order allocating the decedent's severance benefits was a
final appealable order. In making its ruling, the court noted that the term "final decision"
is an order which definitely terminates a right or liability involved in the action or which
grants or refuses a remedy as a terminal act in the case. 301 Kan. at 395. The court
concluded that the allocation order determining the decedent's father's interest in a
severance package and the subsequent enforcement of that order left no further action to
dispose of the issues arising out of the severance package and was, therefore, a final
appealable order. 301 Kan. at 395.
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The order at issue in the present case—holding that Marilyn was not entitled to an
elective share of Charles' estate—definitely terminates a right involved in the action
because it is a final determination of Marilyn's interest in Charles' estate and, thus,
constitutes a final appealable order. See 301 Kan. at 395. As a result, this court has
jurisdiction over the issues raised in Marilyn's appeal.
ANALYSIS
Marilyn presents two points of error on appeal. First, she asserts the district court
erred in concluding that her 1992 consent to take under Charles' will and waive the
statutory spousal election remains enforceable, notwithstanding the 1995 amendments to
the law providing rights to an augmented spousal elective share that did not exist under
prior law. Second, Marilyn asserts the district court erred in failing to address her
alternative argument that any waiver of her elective share rights was limited by K.S.A.
59-6a213(d).
Resolution of both issues raised by Marilyn requires interpretation of provisions in
the Kansas Probate Code (KPC) regarding the elective share of a surviving spouse,
K.S.A. 59-6a201 et seq. Interpretation of a statute is a question of law. An appellate court
is not bound by the district court's interpretation of a statute and is obligated to interpret a
statute de novo. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
Consent and waiver
Prior to 1995, a surviving spouse's elective share rights were governed by K.S.A.
1992 Supp. 59-603. This statute authorized a surviving spouse who had not consented to
take under the decedent's will to either take under the will or exercise the statutory right
to an elective share under the laws of intestate succession. If, however, the surviving
spouse properly consented to the will in lieu of the right to a spousal elective share under
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Kansas law, the survivor was bound by such consent to take under the testator's will.
K.S.A. 1992 Supp. 59-603(a).
In 1994, the Kansas Legislature amended the KPC to repeal K.S.A. 59-603 and
incorporate the elective share provisions set forth in the Uniform Probate Code § 2-201 et
seq. (UPC), 8 U.L.A. 101 (1998). See In re Estate of Antonopoulos, 268 Kan. 178, 181,
993 P.2d 637 (1999). After January 1, 1995, a surviving spouse has a statutory right to
take an elective share percentage of the decedent's "augmented estate." K.S.A. 59-
6a202(a)(1). The augmented estate is the sum of the values of "all property that
constitute[s] the decedent's net probate estate, the decedent's nonprobate transfers to
others, the decedent's nonprobate transfers to the surviving spouse, and the surviving
spouse's property and nonprobate transfers to others." K.S.A. 59-6a203; see also K.S.A.
59-6a208 (exclusions from augmented estate); K.S.A. 59-6a209 (sequential order of
amounts applied to satisfy elective share). A surviving spouse may be eligible to receive
a "supplemental elective share amount" if certain conditions are met. K.S.A. 59-6a202(b).
Notably, the statutory amendments expressly left intact the right of a surviving
spouse to waive any or all of the elective share rights to which the surviving spouse
would be statutorily entitled. K.S.A. 59-6a213(a). The right of a surviving spouse to
homestead and statutory allowances for support also remain unchanged, but the
amendments added an option to receive a homestead allowance in lieu of the actual
homestead itself. See K.S.A. 59-401 (providing for homestead); K.S.A. 59-403
(providing statutory allowances for support of spouse and minor children—the family
allowance); K.S.A. 59-6a215 (providing for right to elect homestead allowance in lieu of
homestead).
Relying on the amendments described above, Marilyn argues the consent and
waiver she executed in 1992 became unenforceable on January 1, 1995, the date the
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amendments became effective, because she could not have knowingly waived spousal
rights that did not yet exist. We disagree.
A valid waiver by a surviving spouse of a right of election against a will, to the
homestead, homestead allowance, exempt property, and family allowance, or all of them,
must meet the following requirements: (1) It must be in the form of a written contract,
written agreement, or written consent to an instrument; (2) it must be signed by the party
waiving the right; (3) it must have been executed voluntarily; (4) the waiving party must
have been provided a fair and reasonable disclosure of the decedent's property; and (5)
the waiving party must have adequate knowledge of the decedent's property. K.S.A. 59-
6a213(a), (b).
The legal sufficiency of a spousal consent is to be determined "as of the time the
document evidencing consent was made." Younger v. Estate of Younger, 198 Kan. 547,
551, 426 P.2d 67 (1967). In this case, Marilyn concedes the consent to take under
Charles' will and to waive the statutory right to an elective share was valid, enforceable,
and satisfied the requirements set forth in K.S.A. 59-6a213 when she signed it in 1992.
Rather, she argues the consent and waiver she signed in 1992 is no longer valid or
enforceable given the Kansas Legislature's 1995 amendments changing the manner in
which the spousal elective share is calculated.
Simply put, there is no language in K.S.A. 59-6a213 to support Marilyn's
argument that application of the statute is limited to consent documents signed after the
KPC amendments went into effect in 1995. In fact, such a distinction would have no
support in the law because there is no substantive difference between the pre-1995 and
post-1995 versions of the consent statute. When Marilyn consented in 1992 to take under
Charles' will and waive her statutory right of election, the statute governing a surviving
spouse's elective share provided, in relevant part:
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"If the survivor consents to the will and all other dispositions subject to a surviving
spouse's right of election or fails to make an election, as provided by law, the survivor
shall take under the testator's will and all other dispositions subject to a surviving
spouse's right of election. The will or other dispositions shall be effective except as to the
elected share." K.S.A. 1992 Supp. 59-603(a).
The current statute governing a surviving spouse's elective share provides, in
relevant part:
"(a) The right of election of a surviving spouse and the rights of the surviving
spouse to the homestead, the homestead allowance or the family allowance, or all of
them, may be waived, wholly or partially, before or after marriage, by a written contract,
agreement, consent to any instrument, or waiver signed by the surviving spouse." K.S.A.
59-6a213(a).
Thus, although the KPC was amended in 1995 to adopt the manner in which the
UPC calculated spousal elective shares, the substance of the law on the issue of consent
to take under a spouse's will and waive the spousal elective share provided by statute has
not changed at all. Both before and after the 1995 amendment, a surviving spouse may
consent in writing to take under a spouse's will and waive, wholly or partially, his or her
right to statutory and other elective share benefits that would otherwise pass to the
surviving spouse by intestate succession. See K.S.A. 1992 Supp. 59-603; K.S.A. 59-
6a213(a).
While we believe the meaning of K.S.A. 59-6a213(a) is clear, one additional rule
of statutory interpretation resolves any ambiguity that may arise when that statute is read
in its entirety. The maxim expressio unius est exclusio alterius, i.e., the inclusion of one
thing implies the exclusion of another, may be applied to assist in determining actual
legislative intent which is not otherwise manifest, although the maxim should not be
employed to override or defeat a clearly contrary legislative intention. Under this rule,
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when legislative intent is in question, we can presume that when the legislature expressly
includes specific terms, it intends to exclude any items not expressly included in the
specific list. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Although K.S.A. 59-6a213(a) does not limit its application to those documents
signed after the statute took effect in 1995, a different subsection of the same statute
specifically references documents executed on or after July 1, 2002, with respect to the
waiver of rights to homestead, homestead allowance, and family allowance. See K.S.A.
59-6a213(d). The legislature did not include a similar prospective date limitation in
K.S.A. 59-6a213(a) relating to instruments or documents which waive elective share
rights. We cannot ignore the fact that the legislature included a prospective date
limitation in subsection (d) of the statute but not in subsection (a).
In addition to a lack of statutory support for her argument, Marilyn's position is
further impaired by the actual language within the 1992 consent and waiver Marilyn
executed. The Consent of Wife signed by Marilyn states:
"I, Marilyn G. Cross, wife of Charles V. Cross, having had explained to me the
provisions of the Last Will and Testament of Charles V. Cross, and all my rights
thereunder, and having had explained to me all my rights under the laws of the State of
Kansas, including homestead rights and statutory allowances, and fully understanding my
rights under said will and under the Statutes of the State of Kansas, do hereby give my
voluntary consent to the execution of this will and do hereby voluntary elect and bind
myself to accept the terms and provisions of said Last Will and Testament in lieu of all
my rights under the laws of the State of Kansas, including homestead rights and statutory
allowances."
We find the language used by Marilyn here to be broad enough to waive spousal
rights in the additional types of property interests subject to the amended spousal elective
share formula that became effective in 1995. And with regard to Marilyn's assertion that
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she could not have knowingly waived spousal rights that did not yet exist, we find the
Supreme Court's discussion in In re Estate of Ellis, 168 Kan. 11, 29, 210 P.2d 417
(1949), to be instructive:
"It may be conceded that in many of our decisions, stress is laid on the fact that
the consenting spouse was not advised as to his or her rights under the statutes pertaining
to descents and distributions, but in those cases that knowledge, or lack of it, went to the
question whether the consent there involved was freely and understandingly given; but it
follows that if a review of the circumstances shows that the consenting spouse was fully
aware of the estate of the other, and of the disposition made in the will, knew for some
period of time that the particular disposition was to be made, made no effort to inform
herself, made no protest to documents of testamentary disposal and her consent thereto
being prepared and without making any effort to ascertain her rights, executed the
consent, it must be held either that she acted intelligently or that she was willing to act
unintelligently."
Conversely, we find the cases cited by Marilyn in support of her position to be
distinguishable. In Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 64 P.3d 395 (2003),
the decedent executed a will in 1978 that created a testamentary trust over which the
trustee had discretion to make distributions of the principal to the decedent's wife for her
lifetime. The decedent's wife consented to the will on the same day. After the decedent
passed away in 1995, the trustee paid the decedent's wife $1,000 per month from the
income and principal of the trust. The decedent's wife later applied for Medicaid benefits.
The Department of Social and Rehabilitation Services (SRS) denied the application based
on its determination that the full value of the trust was an available resource from which
the decedent's wife could pay her bills and found that she was therefore ineligible for
Medicaid. The decedent's wife appealed this decision. Following an administrative
hearing, the presiding officer held that the income of the trust should be attributed to the
decedent's wife for eligibility determination purposes, that the trust was a discretionary
trust, and that "to the extent Mrs. Miller waived her rights to the spousal elective share of
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her husband's estate, she created a trust which would be an available resource when
determining her eligibility." 275 Kan. at 352. On review, the district court held that
because the discretionary trust was funded solely with the decedent's property, the
principal of the trust was not available when considering the Medicaid eligibility of the
decedent's wife.
On appeal to the Kansas Supreme Court, SRS argued that the decedent's wife was
ineligible to receive Medicaid benefits because "her consent to the terms of her husband's
will, in lieu of her taking her statutory elective share as a spouse, essentially placed her
spousal share of the marital estate in the discretionary trust, which makes it an asset
currently available to her for determining Medicaid eligibility." 275 Kan. at 356. The
Supreme Court agreed with SRS. 275 Kan. at 356-63. Marilyn argues that Miller is
controlling because the Supreme Court did not construe the wife's 1978 consent to the
decedent's will as a waiver of her 1995 spousal elective share rights, instead holding that
the discretionary trust was funded by her elective share of the marital estate,
notwithstanding her previous consent to the will. But Marilyn's reliance on Miller is
misplaced because it contains no relevant analysis of the issue currently before us.
Neither party in Miller raised the issue of whether a consent to a will constituted a waiver
of later-enacted elective share statutes pursuant to K.S.A. 59-6a213(a), nor was this an
issue directly addressed by the Supreme Court.
In Re: Estate of Searl, 72 Haw. 222, 811 P.2d 828 (1991), the decedent and her
husband executed a general warranty deed in 1968 which conveyed all of their rights,
title, and interest in certain real estate in Lanikai to the decedent. The decedent executed a
will in 1970 and a codicil to the will in 1983 that named her daughter the sole beneficiary
of her net estate, which included the Lanikai real estate. The decedent did not name the
husband in her will. In 1976, Hawaii adopted the UPC, which included provisions for a
surviving spouse's right to take an elective one-third share of the decedent spouse's net
estate. Following the decedent's death, the husband filed for an elective share of the
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decedent's estate. On appeal to the Hawaii Supreme Court, the decedent's daughter
argued that the general warranty deed executed by the decedent's husband conveying all
his rights in the Lanikai property to the decedent acted as a waiver of any right to an
elective share under the UPC. The Supreme Court disagreed that the husband's
conveyance of the property in fee simple constituted a waiver of his right to an elective
share, reasoning that at the time the husband had conveyed the property, the UPC had not
been enacted and he had no knowledge of his right to take an elective share of the
decedent's property upon her death. As a result, the court held that the general warranty
deed could not act as a waiver of the husband's statutory right to an elective share. 72
Haw. at 226-27.
The case here is clearly distinguishable because Estate of Searl dealt with a
general warranty deed, not a spousal consent to a will. Notably, the Hawaii Supreme
Court held that under the warranty deed the husband had merely conveyed his rights in
certain property but had not waived his elective share rights under the UPC. 72 Haw. at
225-27. Indeed, the court specifically noted: "We do not determine whether the general
warranty deed would constitute a waiver in accordance with HRS § 560:2-204 [(1985);
recodified in 1996 as § 560:2-13]." 72 Haw. at 227 n.1. Hawaii Rev. Stat. § 560:2-
213(a) (2006) is Hawaii's elective share waiver provision, similar to K.S.A. 59-6a213(a).
In addition, spousal elective share rights existed in Kansas in 1992 when Marilyn signed
the consent; the 1995 amendments merely changed the method of calculating the amount
of the surviving spouse's elective share. Compare K.S.A. 1992 Supp. 59-603 with K.S.A.
59-6a202. Unlike the situation in Estate of Searl, the elective share rights were not
enacted for the first time after Marilyn signed the consent.
At the time Marilyn signed the consent to Charles' will, a surviving spouse was
entitled to elect to take one-half of the decedent's estate. See K.S.A. 1992 Supp. 59-602.
A surviving spouse also had the right to claim a homestead and a family allowance. See
K.S.A. 59-401; K.S.A. 59-403. The plain language of Marilyn's consent to Charles' will
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demonstrates that she agreed to accept the provisions made for her under the will in lieu
of "all" other rights under Kansas law. Thus, by consenting to Charles' will, Marilyn gave
up her right to receive her legal share in Charles' estate. The fact that her legal share
would have later changed due to legislative amendment is irrelevant. The district court
properly determined that Marilyn's 1992 consent to Charles' will constituted a waiver of
the elective share statutes amended by the legislature in 1995.
K.S.A. 59-6a213(d)
In her second point of error, Marilyn argues that even if the 1992 consent operates
as a waiver of her elective share rights, the effect of such a waiver is limited pursuant to
the language in K.S.A. 59-6a213(d). Marilyn contends the district court erred in failing to
consider this alternative argument below. In response, the Coexecutors argue that we
should not consider this issue because Marilyn did not object to the district court's failure
to address this argument. See Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013)
(party must object to inadequate findings of fact and conclusions of law to preserve issue
for appeal). But Marilyn is not disputing the adequacy of the district court's findings or
conclusions; rather, she is challenging the district court's ruling that her consent
constituted a waiver of her elective share rights by presenting an alternative argument
that was also raised below. As a result, we will reach the merits of Marilyn's argument.
K.S.A. 59-6a213(d) was amended by the legislature in 2002. The legislature
removed the following stricken language and added the language in italics:
"(d) Unless it provides to the contrary, a waiver of 'all rights,' or equivalent
language, in the property or estate of a present or prospective spouse or a complete
property settlement entered into after or in anticipation of separation or divorce is a
waiver of all rights of elective share, homestead and family allowance by each spouse in
the property of the other and a renunciation by each of all benefits that would otherwise
pass to such spouse from the other by intestate succession or by virtue of any will
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executed before the waiver or property settlement. For documents executed on and after
July 1, 2002, to waive the homestead, the homestead allowance or the family allowance,
or all of them, the language of the document must clearly provide that the homestead, the
homestead allowance or the family allowance, or all of them, were understandably and
knowledgeably waived by each spouse, if applicable." L. 2002, ch. 135, sec. 3.
Marilyn suggests that the legislature's intent in revising K.S.A. 59-6a213(d) was to
codify the pre-1995 law by providing that a waiver of all rights in a consent is only a
waiver of benefits that would otherwise pass by intestate succession or by virtue of any
previously executed will. As a result, she alleges that a waiver of all rights only
constitutes a waiver of what the consenting spouse had already agreed to by signing the
consent, not any additional rights under the Kansas elective share statutes. To that end,
she contends that her 1992 consent could only operate to waive what she would have
received under Charles' will.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v.
Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first attempt to
ascertain legislative intent through the statutory language enacted. When a statute is plain
and unambiguous, an appellate court should not speculate about the legislative intent
behind that clear language, and it should refrain from reading something into the statute
that is not readily found in its words. Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90
(2014). K.S.A. 59-6a213(d) provides that a waiver of "'all rights'" constitutes a waiver
"of all rights of elective share benefits that would otherwise pass to such spouse from the
other by intestate succession or by virtue of any will executed before the waiver . . . ."
This portion of the statute remained unchanged following the 2002 amendment. Rather
than limiting the elective share benefits that may be waived, it appears that the
legislature's purpose in amending the statute was to add the requirement that any
document containing a spouse's waiver to the homestead, the homestead allowance, or
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the family allowance must "clearly provide" that these rights were "understandably and
knowledgably" waived. K.S.A. 59-6a213(d).
In any event, Marilyn's argument would require this court to reach an absurd
result. Charles' will devised to Marilyn the couple's residence, car, household goods,
furnishings, jewelry, and personal effects. By signing the consent, Marilyn expressly
elected to accept the terms and provisions of Charles' will. Marilyn's position would have
this court find that by signing the consent, she was instead waiving her rights to these
items. Such a result is unreasonable. See Fisher v. DeCarvalho, 298 Kan. 482, 495, 314
P.3d 214 (2013) (courts must construe statutes to avoid unreasonable or absurd results
and presume legislature does not intend to enact meaningless legislation). K.S.A. 59-
6a213(d) does not in any way limit the elective share benefits that Marilyn waived by
signing the consent to Charles' will.
Affirmed.
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