In re Estate of Antonopoulos

• Decision Date: 12 November 1999
• Docket Number: No. 81,008.,81,008.
• Citation: 268 Kan. 178,993 P.2d 637
• Parties: In the Matter of the Estate of JOHN N. ANTONOPOULOS, SR., DECEASED. BARBARA J. ANTONOPOULOS, Appellant/Cross-appellee, v. JOHN N. ANTONOPOULOS, JR., Appellee/Crossappellant.
• Court: Kansas Supreme Court

268 Kan. 178

993 P.2d 637

In the Matter of the Estate of JOHN N. ANTONOPOULOS, SR., DECEASED.

BARBARA J. ANTONOPOULOS, Appellant/Cross-appellee, v. JOHN N. ANTONOPOULOS, JR., Appellee/Crossappellant.

No. 81,008.

Supreme Court of Kansas.

Opinion filed November 12, 1999.

John H. Fields, of Kansas City, argued the cause, and David W. Carson, of Kansas City, was with him on the briefs for appellant/cross-appellee.

Barbara M. Weians, of Kansas City, argued the cause and was on the briefs for appellee/cross-appellant.

The opinion of the court was delivered by

LOCKETT, J.:

Decedent's surviving spouse appeals the district court's ruling that certain property and funds held at the time of the decedent's death in joint tenancy by the decedent and decedent's son by a prior marriage are not included in the augmented estate from which the decedent's spouse could take an elective share. Decedent's son cross appeals the district court's increase of the surviving spouse's elective share by finding that the decedent and surviving spouse entered into a common-law marriage prior to their wedding ceremony.

Decedent, John N. Antonopoulos, Sr. (Nick), died intestate on October 4, 1997. He was survived by five adult children and his third wife, Barbara J. Antonopoulos (Barbara). Prior to Nick's death, he had filed for a divorce. After Nick's death, Barbara was appointed administratrix of the estate and granted letters of administration.

On October 30, 1997, Barbara filed an election to take an elective share of the estate. A copy of the election was mailed to John N. Antonopoulos, Jr. (John), Nick's son by a previous marriage, as a person whose interests might be adversely affected by the election.

A dispute arose as to the length of Nick and Barbara's marriage and whether certain properties which had been transferred by Nick to himself and John in joint tenancy prior to the marriage were part of the augmented estate from which Barbara could fulfill her elective share. On March 24, 1998, the district judge found that a common-law marriage predated the couple's July 1992 marriage ceremony. That finding extended the length of the marriage to 10 years and established Barbara's elective share of the augmented estate at 30 percent. The court also found that at Nick's death, the property held in joint tenancy by Nick and John passed by law to John and was not included as part of the augmented estate. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

Application of Elective Share Statutes to Intestate Estates

Interpretation of a statute is a question of law, and this court's review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). An appellate court is not bound by the district court's interpretation of a statute. Cure v. Board of Hodgeman County Comm'rs, 263 Kan. 779, 782, 952 P.2d 920 (1998).

John questions for the first time on appeal whether the elective-share provisions under K.S.A. 59-6a201 et seq., apply to intestate estates. As a general rule, issues raised for the first time on appeal will not be reviewed. In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d 1091 (1988). Under the law of intestate succession, the surviving spouse is entitled to one-half of the decedent's property, including one-half of all real estate which the decedent was seized or possessed at any time during the marriage where the surviving spouse did not consent in writing to the disposition of the property. K.S.A. 59-504; K.S.A. 1998 Supp. 59-505. However, it is clear that we could not apply the elective-share statutes if they are not applicable to intestate estates. Therefore, we will first determine whether the elective-share statutes apply to intestate estates.

Where a statute's construction is uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]). In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).

Through 1994, a surviving spouse's elective share rights were governed by K.S.A. 1993 Supp. 59-603 of the article entitled "Wills." K.S.A. 1993 Supp. 59-603 provided for the right of the surviving spouse to elect against the decedent's will:

"(a) The surviving spouse, who shall not have consented in the lifetime of the decedent to the testator's will and any and all other dispositions subject to a surviving spouse's right of election as provided by law, may make an election whether such surviving spouse will take under the will and such other dispositions subject to a surviving spouse's right of election or take what such surviving spouse would be entitled to by the laws of intestate succession were such surviving spouse the surviving spouse of a decedent who leaves a spouse and child; but such surviving spouse shall not be entitled to both. 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."

In 1994, the Kansas Legislature amended the Probate Code to incorporate a comprehensive elective-share provision patterned after the Uniform Probate Code (UPC). See K.S.A. 59-6a201 et seq.; Uniform Probate Code § 2-201 et seq., 8 U.L.A. 101 (1998); Minutes of the House Committee on Judiciary, February 7, 1994, Testimony regarding elective share reform, Attachments 1-4. Unlike the prior elective-share statute, the new elective-share provisions do not specifically limit their application to testate estates. K.S.A. 59-6a202(a)(1) provides that "[t]he 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." Because there is no expression in the Probate Code regarding the application of the elective share statutes to intestate estates, the underlying public policy advanced by the legislature in implementing the elective-share statutes must be examined.

The new elective-share provisions were intended to correct the inequities that resulted under prior law. The elective-share law is based on two theories of the marriage relationship: the "partnership theory" and the "support theory." The partnership theory of marriage recognizes that both partners have contributed to the accumulated estate. See O'Sullivan and Bowen, New Spousal Elective-Share Rights: Leveling the Playing Field, 65 J.K.B.A. 18 (Feb./ Mar. 1996); Uniform Probate Code Rev. Art. II, General Comment, 8 U.L.A. 93, 99 (1998). Under the partnership theory of marriage, the economic rights of each spouse are derived from an unspoken marital bargain under which the partners agree that each partner is to enjoy a half interest in the fruits of the marriage. A decedent who disinherits his or her surviving spouse (partner) is seen as having reneged on the bargain. The elective share grants the surviving spouse an entitlement to compensation for nonmonetary contributions to the marital estate. Uniform Probate Code Rev. Art. II, General Comment, 8 U.L.A. 93 (1998).

The elective-share provisions implement the marital-partnership theory by means of a mechanically determined approximation system. Under this system, there is no need to identify which of the couple's property was earned during the marriage and which was acquired prior to the marriage or acquired during the marriage by gift or inheritance. Uniform Probate Code Rev. Art. II, General Comment, 8 U.L.A. 96 (1998). A sliding scale adjusts for an assumed corresponding greater contribution to the acquisition of the couple's marital property based on the length of marriage. See K.S.A. 59-6a202(a). The elective-share percentage determined by the sliding scale is applied to the value of the "augmented estate." The augmented estate equals the value of the couple's combined assets, not merely the value of the assets nominally titled in the decedent's name. See K.S.A. 59-6a203.

The support theory recognizes that during their joint lives, spouses owe each other mutual duties of support, and these duties continue in some form after death in favor of the survivor, as a claim on the decedent spouse's estate. O'Sullivan and Bowen, New Spousal Elective-Share Rights: Leveling the Playing Field, 65 J.K.B.A. 18, 19 (Feb./Mar. 1996). The elective share implements the support theory by granting the survivor spouse a supplemental elective-share amount related to the survivor's actual needs. In implementing the support rationale, the length of the marriage is irrelevant because the duty of support is premised on status, and the duty arises at the inception of the marriage. Uniform Probate Code Rev. Art. II, General Comment, 8 U.L.A. 99 (1998).

K.S.A. 59-6a202(b) implements the support rationale by providing a minimum elective-share amount of $50,000 regardless of the length of marriage. The surviving spouse's own title-based ownership interests count first toward making up this supplemental amount, including assets shifting to the survivor at the decedent's death and assets passing to the survivor from...