Linson v. Johnson

The opinion of the court was delivered by

Schroeder, C.J.:

This is an appeal from a summary judgment denying the right of a surviving spouse to inherit from her deceased husband’s estate by reason of a decree of separate maintenance entered June 14, 1972, by the District Court of Jefferson County.

The question is whether the decree of separate maintenance which made a division of the property is final in the sense that property set apart to one spouse cannot be inherited by the surviving spouse under the separate statutes governing intestate succession.

The Kansas Court of Appeals reversed the trial court in an opinion titled Linson v. Johnson, Executrix, 1 Kan. App. 2d 155, 563 P.2d 485, and we granted a petition for review. The facts are fully stated in the opinion of the Court of Appeals, and upon review we adopt and approve the opinion written by the Court of Appeals, which held:

“Nothing in the decree of separate maintenance indicates any clear intent of the *443trial court at that time to terminate rights of inheritance by either of these parties in the estate of the other, and we hold that under the circumstances set forth in this appeal, Ludie Linson as the surviving spouse of George Linson, deceased, is entitled under the provisions of K.S.A. 59-603 to make an election to take what she is entitled to by the laws of intestate succession and her right to inherit from the estate of her deceased husband was not barred by the decree of separate maintenance rendered June 14, 1972, by the District Court of Jefferson County, Kansas. Having so determined, any question as to Ludie’s entitlement to rights of homestead and the widow’s allowance remain with the district court to be resolved pursuant to law.” (pp. 162-163.)

We elaborate on the construction of K.S.A. 60-1610(c) to avoid confusion.

This provision relating to the disposition of property applies equally to cases where either separate maintenance or divorce is decreed. By the language in 60-1610(c), supra, the legislature intended to broaden the power of the trial court concerning the division of property. It brought about a change in the prior law. (LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84.) The trial court can now set property apart to a husband or wife for a period of years until the children are grown or finish school, can place property in trust for the benefit of the wife or husband, as the case may be, can create a life estate in one of the parties with remainder over to the other, or can give property to one of the spouses with a lien in favor of the other, payable out of the proceeds at the expiration of a certain period of time when the property is to be sold. In other words, the trial court can now decree disposition of the property in such a manner as may be appropriate under the circumstances of the case. As 60-1610(c) now stands it does not prevent the trial court from awarding property to one of the parties absolutely by employing language to that effect — that the property, describing it, is awarded to one of the parties, naming the party, free and clear of any right, title, interest, lien, claim or estate of the other.

All the trial judge was required to do, where separate maintenance was decreed, as here, to cut off the right of inheritance of the survivor of the first of the parties to die was to provide in the decree that title to the real property awarded each of the parties be vested free and clear of any right, title, interest, lien, claim or estate of the other party.

When a decree of separate maintenance is entered, and the property is divided pursuant to 60-1610(c), the decree must be specific and clearly indicate an intent on the part of the trial court, when the decree is entered, to terminate the rights of inheritance *444by either of the parties to the marriage in the estate of the other.

The judgment of the trial court is reversed.