Session Law

Identifying Information:L. 2002 ch. 135
Other Identifying Information:2002 Senate Bill 400
Tax Type:Other
Brief Description:An Act concerning the Kansas probate code; relating to residence of administrator; resident agent, written acceptance; relating to the elective share of surviving spouse; concerning homestead rights; invalidity of certain provisions in wills or trusts, exceptions; certain rights of aliens; amending K.S.A. 38-1507, 59-605, 59-6a213, 59-706 and 59-1706 and repealing the existing sections; also repealing K.S.A. 59-511 and 59-512.
Keywords:


Body:

CHAPTER 135

SENATE BILL No. 400


An Act concerning the Kansas probate code; relating to residence of administrator; resi-

dent agent, written acceptance; relating to the elective share of surviving spouse; con-

cerning homestead rights; invalidity of certain provisions in wills or trusts, exceptions;

certain rights of aliens; amending K.S.A. 38-1507, 59-605, 59-6a213, 59-706 and 59-1706


and repealing the existing sections; also repealing K.S.A. 59-511 and 59-512.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 38-1507 is hereby amended to read as follows: 38-

1507. (a) Except as otherwise provided, in order to protect the privacy of

children who are the subject of a child in need of care record or report,

all records and reports concerning children in need of care, including the

juvenile intake and assessment report, received by the department of

social and rehabilitation services, a law enforcement agency or any juve-

nile intake and assessment worker shall be kept confidential except: (1)

To those persons or entities with a need for information that is directly

related to achieving the purposes of this code, or (2) upon an order of a

court of competent jurisdiction pursuant to a determination by the court

that disclosure of the reports and records is in the best interests of the

child or are necessary for the proceedings before the court, or both, and

are otherwise admissible in evidence. Such access shall be limited to in

camera inspection unless the court otherwise issues an order specifying

the terms of disclosure.

(b) The provisions of subsection (a) shall not prevent disclosure of

information to an educational institution or to individual educators about

a pupil specified in subsection (a) of K.S.A. 2000 2001 Supp. 72-89b03

and amendments thereto.

(c) When a report is received by the department of social and reha-

bilitation services, a law enforcement agency or any juvenile intake and

assessment worker which indicates a child may be in need of care, the

following persons and entities shall have a free exchange of information

between and among them:

(1) The department of social and rehabilitation services;

(2) the commissioner of juvenile justice;

(3) the law enforcement agency receiving such report;

(4) members of a court appointed multidisciplinary team;

(5) an entity mandated by federal law or an agency of any state au-

thorized to receive and investigate reports of a child known or suspected

to be in need of care;

(6) a military enclave or Indian tribal organization authorized to re-

ceive and investigate reports of a child known or suspected to be in need

of care;

(7) a county or district attorney;

(8) a court services officer who has taken a child into custody pursuant

to K.S.A. 38-1527, and amendments thereto;

(9) a guardian ad litem appointed for a child alleged to be in need of

care;

(10) an intake and assessment worker;

(11) any community corrections program which has the child under

court ordered supervision;

(12) the department of health and environment or persons authorized

by the department of health and environment pursuant to K.S.A. 59-512

65-512, and amendments thereto, for the purpose of carrying out re-

sponsibilities relating to licensure or registration of child care providers

as required by chapter 65 of article 5 of the Kansas Statutes Annotated,

and amendments thereto; and

(13) members of a duly appointed community services team.

(d) The following persons or entities shall have access to information,

records or reports received by the department of social and rehabilitation

services, a law enforcement agency or any juvenile intake and assessment

worker. Access shall be limited to information reasonably necessary to

carry out their lawful responsibilities to maintain their personal safety and

the personal safety of individuals in their care or to diagnose, treat, care

for or protect a child alleged to be in need of care.

(1) A child named in the report or records.

(2) A parent or other person responsible for the welfare of a child,

or such person's legal representative.

(3) A court-appointed special advocate for a child, a citizen review

board or other advocate which reports to the court.

(4) A person licensed to practice the healing arts or mental health

profession in order to diagnose, care for, treat or supervise: (A) A child

whom such service provider reasonably suspects may be in need of care;

(B) a member of the child's family; or (C) a person who allegedly abused

or neglected the child.

(5) A person or entity licensed or registered by the secretary of health

and environment or approved by the secretary of social and rehabilitation

services to care for, treat or supervise a child in need of care. In order to

assist a child placed for care by the secretary of social and rehabilitation

services in a foster home or child care facility, the secretary shall provide

relevant information to the foster parents or child care facility prior to

placement and as such information becomes available to the secretary.

(6) A coroner or medical examiner when such person is determining

the cause of death of a child.

(7) The state child death review board established under K.S.A. 22a-

243, and amendments thereto.

(8) A prospective adoptive parent prior to placing a child in their care.

(9) The department of health and environment or person authorized

by the department of health and environment pursuant to K.S.A. 59-512

65-512, and amendments thereto, for the purpose of carrying out re-

sponsibilities relating to licensure or registration of child care providers

as required by chapter 65 of article 5 of the Kansas Statutes Annotated,

and amendments thereto.

(10) The state protection and advocacy agency as provided by sub-

section (a)(10) of K.S.A. 65-5603 or subsection (a)(2)(A) and (B) of K.S.A.

74-5515, and amendments thereto.

(11) Any educational institution to the extent necessary to enable the

educational institution to provide the safest possible environment for its

pupils and employees.

(12) Any educator to the extent necessary to enable the educator to

protect the personal safety of the educator and the educator's pupils.

(13) The secretary of social and rehabilitation services.

(14) A law enforcement agency.

(15) A juvenile intake and assessment worker.

(16) The commissioner of juvenile justice.

(e) Information from a record or report of a child in need of care

shall be available to members of the standing house or senate committee

on judiciary, house committee on appropriations, senate committee on

ways and means, legislative post audit committee and joint committee on

children and families, carrying out such member's or committee's official

functions in accordance with K.S.A. 75-4319 and amendments thereto,

in a closed or executive meeting. Except in limited conditions established

by 2/3 of the members of such committee, records and reports received

by the committee shall not be further disclosed. Unauthorized disclosure

may subject such member to discipline or censure from the house of

representatives or senate.

(f) Nothing in this section shall be interpreted to prohibit the secre-

tary of social and rehabilitation services from summarizing the outcome

of department actions regarding a child alleged to be a child in need of

care to a person having made such report.

(g) Disclosure of information from reports or records of a child in

need of care to the public shall be limited to confirmation of factual details

with respect to how the case was handled that do not violate the privacy

of the child, if living, or the child's siblings, parents or guardians. Further,

confidential information may be released to the public only with the ex-

press written permission of the individuals involved or their representa-

tives or upon order of the court having jurisdiction upon a finding by the

court that public disclosure of information in the records or reports is

necessary for the resolution of an issue before the court.

(h) Nothing in this section shall be interpreted to prohibit a court of

competent jurisdiction from making an order disclosing the findings or

information pursuant to a report of alleged or suspected child abuse or

neglect which has resulted in a child fatality or near fatality if the court

determines such disclosure is necessary to a legitimate state purpose. In

making such order, the court shall give due consideration to the privacy

of the child, if, living, or the child's siblings, parents or guardians.

(i) Information authorized to be disclosed in subsections (d) through

(g) shall not contain information which identifies a reporter of a child in

need of care.

(j) Records or reports authorized to be disclosed in this section shall

not be further disclosed, except that the provisions of this subsection shall

not prevent disclosure of information to an educational institution or to

individual educators about a pupil specified in subsection (a) of K.S.A.

2000 2001 Supp. 72-89b03 and amendments thereto.

(k) Anyone who participates in providing or receiving information

without malice under the provisions of this section shall have immunity

from any civil liability that might otherwise be incurred or imposed. Any

such participant shall have the same immunity with respect to participa-

tion in any judicial proceedings resulting from providing or receiving in-

formation.

(l) No individual, association, partnership, corporation or other entity

shall willfully or knowingly disclose, permit or encourage disclosure of

the contents of records or reports concerning a child in need of care

received by the department of social and rehabilitation services, a law

enforcement agency or a juvenile intake and assessment worker except

as provided by this code. Violation of this subsection is a class B misde-

meanor.

Sec. 2. K.S.A. 59-605 is hereby amended to read as follows: 59-605.

If it shall appear that any will was written or prepared by the sole or

principal beneficiary in such will, who, at the time of writing or preparing

the same, was the confidential agent or legal adviser of the testator, or

who occupied at the time any other position of confidence or trust to such

testator, such will shall not be held to be valid unless it shall affirmatively

appear that the testator had read or knew the contents of such will, and

had independent advice with reference thereto. Any provision in a will

or trust, written or prepared for another person, that gives the writer or

preparer or the writer's or preparer's parent, children, issue, sibling or

spouse any devise or bequest is invalid unless: (a) The writer or preparer

is related to the testator or grantor by blood or marriage and such pro-

vision that gives such devise or bequest does not give the writer or pre-

parer or the writer's or preparer's parent, child, issue, sibling or spouse

more than the writer or preparer or the writer's or preparer's parent,

child, issue, sibling or spouse would receive under the laws of intestate

succession; or (b) it affirmatively appears that the testator or grantor had

read or knew the content of the will or trust and had independent legal

advice with reference thereto. As used in this section, ``children'' and ``is-

sue'' shall have the same meaning as provided in K.S.A. 59-501, and

amendments thereto.

Sec. 3. K.S.A. 59-6a213 is hereby amended to read as follows: 59-

6a213. (a) The right of election of a surviving spouse and the rights of the

surviving spouse to either the homestead, the homestead allowance or the

family allowance, or both 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.

(b) A surviving spouse's waiver is not enforceable if the surviving

spouse proves that:

(1) The surviving spouse did not execute the waiver voluntarily; or

(2) the waiver was unconscionable when it was executed and, before

execution of the waiver, the surviving spouse:

(A) Was not provided a fair and reasonable disclosure of the property

or financial obligations of the decedent;

(B) did not voluntarily and expressly waive, in writing, any right to

disclosure of the property or financial obligations of the decedent beyond

the disclosure provided; and

(C) did not have, or reasonably could not have had, an adequate

knowledge of the property or financial obligations of the decedent.

(c) An issue of unconscionability of a waiver is for decision by the

court as a matter of law.

(d) Unless it provides to the contrary, a waiver of ``all rights,'' or equiv-

alent 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

executed before the waiver or property settlement. For documents exe-

cuted 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 allow-

ance or the family allowance, or all of them, were understandably and

knowledgeably waived by each spouse, if applicable.

Sec. 4. K.S.A. 59-706 is hereby amended to read as follows: 59-706.

In cases of administration of a resident's estate:

(a) Letters of administration shall not may be granted to a nonresi-

dent of this state; and when the nonresident has appointed an agent pur-

suant to K.S.A. 59-1706, and amendments thereto. When an administrator

of a resident's estate shall become becomes a nonresident, the court shall

revoke such administrator's letters, until the nonresident has appointed

an agent pursuant to K.S.A. 59-1706, and amendments thereto.

(b) Letters testamentary may be granted to a nonresident of this state

when the nonresident has appointed an agent pursuant to K.S.A. 59-1706,

and amendments thereto. When an executor of a resident's estate shall

become becomes a nonresident, the court shall revoke such nonresident's

letters, until the nonresident has appointed an agent pursuant to K.S.A.

59-1706, and amendments thereto.

Sec. 5. K.S.A. 59-1706 is hereby amended to read as follows: 59-1706.

Every nonresident appointed a fiduciary in this state shall, before entering

upon the duties of the trust, shall appoint in writing an agent residing in

the county where the appointment is made, and shall. By such writing con-

sent, the nonresident fiduciary consents that the service of any notice or

process when made upon said such agent shall have the same force and

effect as if made personal service upon the fiduciary personally within said

such county and state. Such writing shall state the correct address of such

agent and shall be filed in the district court where such appointment is

made. Such writing shall include written acceptance of such appointment

by the designated agent. Service of notice or process upon such agent shall

have the same force and effect as personal service upon the fiduciary.

Sec. 6. K.S.A. 38-1507, 59-511, 59-512, 59-605, 59-6a213, 59-706

and 59-1706 are hereby repealed.

Sec. 7. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 17, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002