Unfortunately, she can set up her trust as she pleases with her separate property. However, a surviving spouse is entitled to an elective share under the law as follows:

.

59-6a202. Elective share; amount; supplemental amount; effect of election on statutory benefits; nonresident. (a) (1) The surviving spouse of a decedent who dies a resident of this state has a right of election, under the limitations and conditions stated in this act, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse

The elective-share

were married to each other:

percentage is:

Less than 1 year.................Supplemental amount only

1 year but less than 2 years.................3% of the augmented estate

2 years but less than 3 years.................6% of the augmented estate

3 years but less than 4 years.................9% of the augmented estate

4 years but less than 5 years.................12% of the augmented estate

5 years but less than 6 years.................15% of the augmented estate

6 years but less than 7 years.................18% of the augmented estate

7 years but less than 8 years.................21% of the augmented estate

8 years but less than 9 years.................24% of the augmented estate

9 years but less than 10 years.................27% of the augmented estate

10 years but less than 11 years.................30% of the augmented estate

11 years but less than 12 years.................34% of the augmented estate

12 years but less than 13 years.................38% of the augmented estate

13 years but less than 14 years.................42% of the augmented estate

14 years but less than 15 years.................46% of the augmented estate

15 years or more.................50% of the augmented estate

(2) If the decedent and the surviving spouse were married to each other more than once, all periods of marriage to each other are added together for purposes of this subsection. Periods between marriages are not counted.

(b) If the sum of the amounts described in K.S.A. 59-6a207, subsection (a)(1) of K.S.A. 59-6a209 and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under subsections (b) and (c) of K.S.A. 59-6a209 is less than $50,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in subsections (b) and (c) of K.S.A. 59-6a209.

(c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

(d) The right, if any, of the surviving spouse of a decedent who dies a nonresident of this state to take an elective share in property in this state is governed by article 8 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto.

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Expert:	PaulMJD
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Answered:	8/15/2009

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