When Bob and Laura married, they both had children and assets from previous marriages. They had new wills prepared, with each leaving their separate assets to their own children, but they did not sign a consent to one another’s wills. When Bob died ten years later, Laura’s attorney advised her that, as a surviving spouse in Kansas, she was entitled to a percentage of all of Bob’s assets—including the 300-acre farm that had been in his family for generations. Although she knew Bob had wanted the farm to go only to his children, she felt that she and her children had a right to part of it. She decided to contest Bob’s will, prompting a bitter and expensive court battle. Eventually Laura won. But, the farm had to be sold to pay the expenses, and the closeness the family had developed during Bob’s lifetime had been destroyed.
Second marriages, or even first marriages that occur later in life, can be wonderful and fulfilling but they should be entered into with caution when it comes to preserving family assets. In the above scenario, Bob’s farm had been in the family for generations. Bob and Laura had discussed that Bob wanted the farm to stay in his family after his death, but Bob’s will was not properly prepared to ensure that would happen. Because Bob and Laura had been married for ten years, Kansas law states that a surviving spouse who had been married 10 years but less than 11 years may receive 30% of the augmented estate of the deceased. Kansas Statute 59-6a202 offers a sliding scale to provide for the surviving spouse according to the number of years the couple was married. For example, if the couple had been married for 5 years, but less than 6 years, the surviving spouse would receive 15% of the augmented estate of the deceased; and if the couple had been married for 15 years or more, the surviving spouse would receive 50% of the augmented estate of the deceased.
Additionally, a surviving spouse is entitled to the homestead (residence) after the death of their spouse, unless otherwise agreed upon in their wills or in a pre- or postnuptial agreement. According to Kansas Statute 59-6a215, “a surviving spouse is entitled to the homestead, or in lieu thereof the surviving spouse may elect to receive a homestead allowance of $50,000. The homestead or homestead allowance is exempt from and has priority over all demands against the estate. The homestead or homestead allowance is in addition to any share passing to the surviving spouse by way of elective share.”
In order for Bob’s farm to pass to his children after his death, his will should have been formally consented to by Laura in writing at or soon after the time the will was signed by Bob. Laura should have been offered separate legal counsel to review Bob’s will prior to consenting so she would have full knowledge that she was agreeing to receiving less than what she was legally entitled to under Kansas law. By doing this, Bob and Laura could have addressed any concerns Laura may have had about her future financial security.
If Bob and Laura had entered into a formal prenuptial or postnuptial agreement, this situation also could have been avoided. With a pre- or postnuptial agreement, the couple discloses all of their individual assets acquired prior to the new marriage and with proper legal advice, they waive some or all of their rights to their partner’s separate assets.
Individuals who own a farm, ranch or family business and wish these assets to remain in their family lineage should be especially cautious when entering into marriage. An experienced estate planning attorney can offer multiple suggestions on how to provide security for surviving spouses while preserving the previously acquired assets for lineal descendants. While properly drafted wills and prenuptial agreements can be contested after someone’s death, the likelihood that the contest will be successful is greatly reduced, thereby protecting those assets from being distributed after an individual’s death in a way they would not have wanted.
If you have concerns about how to preserve your individual assets in light of an upcoming marriage or even after a recent marriage, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
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