SENATE BILL No. 400
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
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
(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
(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
(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-
(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-
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
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.
Date Composed: 10/10/2002 Date Modified: 10/10/2002