Estate and probate laws in most jurisdictions are protective of spouses and Kentucky is no exception. You can’t disinherit your spouse in this state – if you try, legislation makes sure she receives something. Some federal laws supersede Kentucky law, however, and not all of these are quite as generous to surviving spouses.
Kentucky's dower share law protects surviving spouses from disinheritance and even from nominal bequests that are less than provided by statute. For example, if you leave your wife $5,000 in your will, but your estate is worth $1 million, she can file notice with the court within six months after your will is admitted for probate, declining the $5,000. She can take her statutory percentage of your estate under Kentucky law instead. This is typically a third to half of the value of your real estate, depending on whether you still own it at the time of your death. She also receives half of your other property. Under Kentucky law, your spouse can receive her dower share of your estate in addition to other bequests you leave her in your will, but you must indicate in your will that this is what you want. This law assumes that you don't own your real estate jointly with your spouse with rights of survivorship. In this case, the entirety of the property would pass directly to her by operation of law.
Read More: What Do Provisions in Lieu of Dower Mean in a Divorce?
In legal terms, if you don't leave a will, you die intestate. State law takes over to determine who should receive your property. In Kentucky, the laws for intestate succession mirror those for dower shares, but they're a tad more generous under certain circumstances and they also consider your children. Your surviving spouse receives at least half your property if you die without a will. If you have no children and your parents predecease you, she gets all of your property. Otherwise, if you have no children, one or both of your parents – if they're still living – would receive the other half of your estate. If you have children, they would share the other half and your parents would receive nothing.
Most people leave behind at least some debts when they die. In Kentucky, dower shares are usually calculated from the "surplus" of an estate – that which is left over after paying your debts. If your estate must sell real property held in your sole name to pay your debts and the property was the residence you shared with your spouse, your spouse is entitled to a $5,000 exemption of the proceeds. This exemption establishes a life estate for your spouse – enabling her to continue living in the residence until her own death, but check with a local attorney to make sure before you rely on this as part of your estate plan. The debts in question cannot have existed before you purchased the house. The nature of some debts – such as the mortgage lien against your property – can affect this rule.
Designated Account Beneficiaries
Beneficiary designations, such as those on retirement accounts and life insurance policies, are largely governed by federal law. Your spouse has no right to your life insurance death benefits if you name someone else as beneficiary of the policy, provided the designation meets the letter of the law. The beneficiary must be someone who depends on you for support, a charitable organization or a family member. You have no choice but to name your spouse as beneficiary of your 401(k) in Kentucky, or in any other state, unless she waives this right in writing. She must do so after your wedding when she's actually your spouse. She can't waive her right in a prenup. IRAs are different – as with life insurance policies, you can name almost anyone you like.
- Denton & Keuler: The Pitfalls of Dying Without Proper Estate Planning in Kentucky – Five Good Reasons to Prepare a Will
- Legal Aid Network of Kentucky: Wills and Trusts
- University of Kentucky, College of Agriculture: What You Should Know About Wills (PDF)
- Kentucky Legislature: Kentucky Revised Statutes, Chapter 392.020 (PDF)
- Kentucky Legislature: Kentucky Revised Statutes, Chapter 392.080 (PDF)
- Stewart Virtual Underwriter: Spousal Rights
- The Heritage Law Center: Can Surviving Spouses Be IRA or 401(k) Beneficiaries?
- Bankrate.com: Must Life Insurance Beneficiary Be Spouse?
- HeinOnline: Married in Kentucky – A Surviving Spouse's Dower Right in Personalty
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.