CHAPTER 391 Descent and Distribution

391.010. Descent of real estate.

When a person having right or title to any real estate or inheritance dies intestate as to such estate, it shall descend in common to his kindred, male and female, in the following order, except as otherwise provided in this chapter:

  1. To his children and their descendants; if there are none, then
  2. To his father and mother, if both are living, one (1) moiety each; but if the father is dead, the mother, if living, shall take the whole estate; if the mother is dead, the whole estate shall pass to the father; if there is no father or mother, then
  3. To his brothers and sisters and their descendants; if there are none, then
  4. To the husband or wife of the intestate; if there are none surviving, then
  5. One (1) moiety of the estate shall pass to the paternal and the other to the maternal kindred, in the following order:
    1. The grandfather and grandmother equally, if both are living; but if one is dead, the entire moiety shall go to the survivor; if there is no grandfather or grandmother, then
    2. To the uncles and aunts and their descendants; if there are none, then
    3. To the great-grandfathers and great-grandmothers, in the same manner prescribed for grandfather and grandmother by subsection (a); if there are none, then
    4. To the brothers and sisters of the grandfathers and grandmothers and their descendants; and so on in other cases without end, passing to the nearest lineal ancestors and their descendants.
  6. If there is no such kindred to one of the parents as is described in subsection (5), the whole to go to the kindred of the other. If there is neither paternal nor maternal kindred, the whole shall go to the kindred of the husband or wife, as if he or she had survived the intestate and died entitled to the estate.

History. 1393: amend. Acts 1956, ch. 132; 1974, ch. 328, § 2.

NOTES TO DECISIONS

1.Application.

This statute is applicable where an infant inherits land and dies after becoming of age and without issue. Bertram v. Witherspoon's Adm'r, 138 Ky. 116 , 127 S.W. 533, 1910 Ky. LEXIS 47 ( Ky. 1910 ). See Kentucky Stave Co. v. Page, 125 S.W. 170 ( Ky. 1910 ); Ganaway v. Ganaway's Adm'r, 246 Ky. 722 , 56 S.W.2d 4, 1932 Ky. LEXIS 824 ( Ky. 1932 ).

2.Moiety.

“Moiety” as used in this section denotes one-half of the estate of the deceased and not the whole of it. Young v. Smithers, 181 Ky. 847 , 205 S.W. 949, 1918 Ky. LEXIS 621 ( Ky. 1918 ).

3.Heirs.

Identity of names, religion and nativity are too common to be alone sufficient evidence of family connection. Ellis v. Dixon, 294 Ky. 609 , 172 S.W.2d 461, 1943 Ky. LEXIS 512 ( Ky. 1943 ).

The testimony of persons well acquainted with the decedent and a probate genealogist, who made a search for heirs of the decedent, that they did not believe that there were any surviving heirs of the decedent was sufficient to support a finding that the decedent left no surviving heirs. Newport Nat'l Bank v. Fick, 294 S.W.2d 521, 1956 Ky. LEXIS 125 ( Ky. 1956 ).

A person claiming as an heir must prove that all persons who stood in an intervening relationship to the intestate are dead. Ryburn v. First Nat'l Bank, 399 S.W.2d 313, 1965 Ky. LEXIS 25 ( Ky. 1965 ).

The intestate’s grandniece and grandnephew could not be heirs where intestate’s brother was living at the time of intestate’s death. Ryburn v. First Nat'l Bank, 399 S.W.2d 313, 1965 Ky. LEXIS 25 ( Ky. 1965 ).

4.— Presumption.

There is a legal presumption that every decedent has heirs, but this presumption may be rebutted. Montz v. Schwabacher, 119 Ky. 256 , 83 S.W. 569, 26 Ky. L. Rptr. 1214 , 1904 Ky. LEXIS 159 ( Ky. 1904 ).

There is a legal presumption that every decedent has heirs, but the presumption may be rebutted either by lapse of time, accompanied by nonappearance of heirs, or by proof of the nonexistence of heirs. Newport Nat'l Bank v. Fick, 294 S.W.2d 521, 1956 Ky. LEXIS 125 ( Ky. 1956 ).

5.— Hearsay Evidence.

Declarations as to family pedigree and history, although hearsay, are admissible if the declarant is dead, the declarations were made at a time when there was no motive to distort the truth, and the declarant was related by blood or affinity to the family whose genealogy is in question, the relationship having been established by evidence other than the statements of the declarant. Ellis v. Dixon, 294 Ky. 609 , 172 S.W.2d 461, 1943 Ky. LEXIS 512 ( Ky. 1943 ).

Where kindred of the intestate’s deceased spouse are claiming the estate on the ground that the intestate left surviving neither paternal nor maternal kindred, the burden of proving the nonexistence of such kindred may be met by hearsay evidence of persons acquainted with the intestate under the exception to the hearsay rule for matters of family history, relationship and pedigree. Davis' Adm'r v. Chasteen, 273 S.W.2d 368, 1954 Ky. LEXIS 1163 ( Ky. 1954 ).

Hearsay testimony is admissible to prove the nonexistence of heirs under the exception to the hearsay rule pertaining to matters of family history, relationships, and pedigree. Newport Nat'l Bank v. Fick, 294 S.W.2d 521, 1956 Ky. LEXIS 125 ( Ky. 1956 ).

6.Paternal and Maternal Kin.

Where the deceased is survived only by his maternal grandmother and uncles and aunts on his father’s side, the grandmother inherits one half and the uncles and aunts inherit one half. Young v. Smithers, 181 Ky. 847 , 205 S.W. 949, 1918 Ky. LEXIS 621 ( Ky. 1918 ).

When the estate is divided into moieties subsection (5) intends that one half of the estate shall pass to the paternal and the other half to the maternal heirs as a class. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

Judgment that ordered the net proceeds from the sale of a deceased daughter’s property, after the payment of funeral expenses, bank debt, and administration fees, were to be distributed one-half (1/2) to the husband as his dower share under KRS 392.020 minus $2,000 for damages he had caused to the mobile home and one-quarter plus $1,000 each to the parents did not erroneously ignore the parents’ inherited interest under KRS 391.010 ; the debts of the estate had to be satisfied pursuant to KRS 391.030(1) and KRS 395.515 before any distribution of the real and personal property of the intestate daughter. Sanders v. Smith, 2007 Ky. App. Unpub. LEXIS 44 (Ky. Ct. App. Aug. 17, 2007).

7.Partial Intestacy.

Property owned by a testator but not disposed of in his will passes to his heirs-at-law under this section. Todd v. Gentry, 109 Ky. 704 , 60 S.W. 639, 22 Ky. L. Rptr. 1319 , 1901 Ky. LEXIS 34 ( Ky. 1901 ).

As the will made no disposition of the corpus of the estate, it passed to the testator’s three children who were living at his death. Fox v. Burgher, 285 Ky. 470 , 148 S.W.2d 342, 1941 Ky. LEXIS 412 ( Ky. 1941 ).

Where the testator bequeathed interests in the income of his estate to certain relatives with the interest passing to his designated nieces and nephews on the deaths of the primary beneficiaries but no provision was made for the distribution of the corpus, the testator did not die intestate as to the remainder for the fee-simple vested in the remainder beneficiaries. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

8.Survivorship of Spouse.

Where husband and wife died on same day, burden was on wife’s administrator, in action to recover wife’s distributive share of husband’s estate, to prove that husband died first. McGraw's Adm'r v. McGraw's Adm'r, 293 Ky. 722 , 169 S.W.2d 840, 1943 Ky. LEXIS 681 ( Ky. 1943 ).

Where wife was found dead on road a short distance from home, and husband was found dead in bed at home several hours later, it was a jury question as to which died first, notwithstanding that position of husband’s body suggested that wife had laid him out. McGraw's Adm'r v. McGraw's Adm'r, 293 Ky. 722 , 169 S.W.2d 840, 1943 Ky. LEXIS 681 ( Ky. 1943 ).

9.Half-blood Kin.

Where the property of an intestate passes under this section to his maternal and paternal kindred and on one side there is only a cousin by the half blood and there are several cousins by full blood on the other, each side takes one half, because KRS 391.050 applies only within a moiety after the division into halves. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

The only heir on the maternal side, even though a half-blood kinsman, is entitled to one half of the estate under subsection (5) of this section and KRS 391.050 . Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

Where an intestate died leaving as descendants the issue of a brother of the half blood and some aunts and uncles of the whole blood, the issue of the brother of the half blood inherited the entire estate. Ragland v. Shrout, 476 S.W.2d 820, 1972 Ky. LEXIS 391 ( Ky. 1972 ).

10.Adopted Children.

Person lawfully adopted under laws of another state may take under Kentucky statutes of descent and distribution, if the rights of inheritance given to adopted children by the laws of such other state are not inconsistent or in conflict with the laws or policies of Kentucky. Pyle v. Fischer, 278 Ky. 287 , 128 S.W.2d 726, 1939 Ky. LEXIS 423 ( Ky. 1939 ).

11.Brothers and Sisters.

Brothers and sisters of a deceased are entitled to a recovery only upon a showing that the deceased left no surviving spouse, child, or parent. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Brothers and sisters of the half blood are members not of a succeeding class but of the same class as the full brothers or sisters. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

Two half sisters of the deceased were not barred from intestate succession by the existence of a daughter of a sister of the full blood. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

12.Spouse of Intestate.

Where a settlor creates a trust with directions to the trustee that upon the death of the settlor the property is to be distributed to “those persons who under the statute of descent in Kentucky would be the heirs at law” of the settlor, the surviving husband is an heir. Lee v. Belknap, 163 Ky. 418 , 173 S.W. 1129, 1915 Ky. LEXIS 248 ( Ky. 1915 ).

Where the spouse of the intestate or kindred of the spouse claims the realty of the intestate, such claimant must affirmatively prove that the intestate left neither paternal nor maternal kindred and such claimant may not recover alone on the weakness of any contrary claim. Hagedorn v. Reiser, 310 Ky. 657 , 221 S.W.2d 633, 1949 Ky. LEXIS 992 ( Ky. 1949 ).

13.Children.

“Children” as used in law of descent was not confined to issue born in lawful wedlock; but included all children that were made by law capable of inheriting. Drain v. Violett, 65 Ky. 155 , 1867 Ky. LEXIS 40 ( Ky. 1867 ) (decided under prior law).

14.Illegitimate Children.

Illegitimate children under incestuous marriage could inherit from their mother but not their father’s estate. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ).

Where testimony of natural mother of alleged posthumous illegitimate child of decedent, decedent’s sister and administratrix, and long-time friend of decedent, who were the only ones to testify, established (1) the nature and duration of the relationship between child’s mother and the decedent which was consistent with decedent being the father of her expected child; (2) that mother and the decedent suspected that she was pregnant and that the decedent informed the witnesses that he was the expectant father; and (3) that the couple planned to be married the weekend the decedent died unexpectedly, and all three witnesses testified to the physical resemblances between child and the decedent, and no contradictory proof was offered by the respondents, the child met the mandated burden of proof by showing with clear and convincing evidence that decedent was his father. Fykes v. Clark, 635 S.W.2d 316, 1982 Ky. LEXIS 268 ( Ky. 1982 ).

A posthumous, illegitimate child has standing in court to attempt to prove paternity, even though the putative father has died between the time of conception and birth. Fykes v. Clark, 635 S.W.2d 316, 1982 Ky. LEXIS 268 ( Ky. 1982 ).

The standard of clear and convincing evidence, rather than a preponderance of the evidence, is the necessary standard which must be met by posthumous illegitimate child attempting to prove paternity. Fykes v. Clark, 635 S.W.2d 316, 1982 Ky. LEXIS 268 ( Ky. 1982 ).

It is as true for a legitimate heir as it is for an illegitimate child that a claim on an estate does not exist prior to the death of decedent since decedent could have at any time executed a will and obviated any considerations of intestacy. Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 147 (Ky. Sept. 26, 1991).

Title to real estate owned by an intestate passes directly to the heirs by virtue of this section and this is true whether those heirs are legitimate or illegitimate. Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 147 (Ky. Sept. 26, 1991).

The law in effect at the time the life estate ended governed closing of life estate, and since law had been well established that illegitimate children are entitled to inherit from both their mothers and fathers, lower court properly ruled that illegitimate children of testator’s brother were testator’s heirs. Conway v. Childress, 896 S.W.2d 15, 1994 Ky. App. LEXIS 152 (Ky. Ct. App. 1994).

15.Child Without Issue.

When a child dies intestate survived only by its mother, she inherits the decedent’s property subject to liens created by the child during its lifetime. Maxwell's Committee v. Centennial Perpetual Bldg. & Loan Ass'n, 131 Ky. 18 , 114 S.W. 324, 1908 Ky. LEXIS 111 ( Ky. 1908 ).

Where a child inherits land from one of his parents and dies after becoming of age and without issue, the other parent, if the only one surviving, inherits the realty under this section. Gambrell v. Gambrell, 167 Ky. 734 , 181 S.W. 328, 1916 Ky. LEXIS 456 ( Ky. 1916 ). See Kentucky Stave Co. v. Page, 125 S.W. 170 ( Ky. 1910 ).

16.Vested Remainders.

Vested remainder interests of children, who die intestate without issue prior to their interest becoming possessory, are inherited by the parents. Rose v. Bryant, 251 S.W.2d 860, 1952 Ky. LEXIS 940 ( Ky. 1952 ).

Vested remainders pass under the general statute of descent. Saulsberry v. Second Nat'l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ).

Where there is no uncertainty as to the person who is to take, and his surviving some particular time or event does not enter into and make a part of the contingency upon which the remainder is intended to take effect, if the remainderman dies before the contingency happens, his interest will pass to his heirs, thus, where a testatrix left property to her son for life then to his wife, if she was living with the son at his death, and to the testatrix’s cousin, if the wife was not, and both the wife and the cousin predeceased the son, the heirs of the cousin took the property. Saulsberry v. Second Nat'l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ).

17.Law Governing Distribution.

Since distribution of estate must be in accordance with laws in effect at time of intestate’s death and not at time of distribution where intestate died in 1953, distribution of his estate would be made in accordance with this section as it stood prior to 1956 amendment. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

18.Compromise of Claims.

Where, pursuant to a good-faith compromise, the son of the testator paid his sister a sum substantially in excess of the amount bequeathed her by the will, he furnished her adequate consideration for her agreement to relinquish all her claim to the estate. Murphy v. Henry, 311 Ky. 799 , 225 S.W.2d 662, 1949 Ky. LEXIS 1247 ( Ky. 1949 ).

19.Foreign Law.

A foreign judgment determining a course of descent affecting land in Kentucky different from the law of this state would be a nullity, and so of a judgment determining the existence of a lien on realty here for the purpose of satisfying the claim of the widow for her share in the distribution or for her yearly support. Gaskins v. Gaskins, 311 Ky. 59 , 223 S.W.2d 374, 1949 Ky. LEXIS 1059 ( Ky. 1949 ).

The descent and distribution of real property is governed by the law of the state of its situs to the exclusion of foreign laws. Gaskins v. Gaskins, 311 Ky. 59 , 223 S.W.2d 374, 1949 Ky. LEXIS 1059 ( Ky. 1949 ).

Cited:

McGuire v. Whitt, 80 S.W. 474, 25 Ky. L. Rptr. 2275 (1904); Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ); Mason’s Adm’r v. Mason’s Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 744 ( Ky. 1931 ); Bates v. Hanks, 262 Ky. 556 , 90 S.W.2d 743, 1935 Ky. LEXIS 793 ( Ky. 1935 ); Pierce v. Pierce, 309 Ky. 77 , 216 S.W.2d 408, 1948 Ky. LEXIS 10 72 ( Ky. 1948 ); Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837, 1950 Ky. LEXIS 906 ( Ky. 1950 ); Farmers Nat’l Bank v. McKenney, 264 S.W.2d 881, 1954 Ky. LEXIS 706 ( Ky. 1954 ); White v. Hogge, 291 S.W.2d 22, 1956 Ky. LEXIS 361 ( Ky. 1956 ); Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ); Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 10 2 ( Ky. 1960 ); Graham v. Jones, 386 S.W.2d 271, 1965 Ky. LEXIS 500 ( Ky. 1965 ); Motorists Mut. Ins. Co. v. Richmond, 676 S.W.2d 478, 1984 Ky. App. LEXIS 578 (Ky. Ct. App. 1984); Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Crain v. Dean, 741 S.W.2d 655, 1987 Ky. LEXIS 256 ( Ky. 1987 ); Conway v. Childress, 896 S.W.2d 15, 1994 Ky. App. LEXIS 152 (Ky. Ct. App. 1994); Hisle v. Lexington-Fayette Urban County Gov’t, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008); Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ); Willett v. Estate of Vessells, 629 S.W.3d 20, 2021 Ky. App. LEXIS 84 (Ky. Ct. App. 2021).

Research References and Practice Aids

Cross-References.

Claims against decedent’s estates, KRS Chapter 396.

Descent and distribution, General Assembly not to pass special acts on, Const., § 59, Eighth.

Descent in case of simultaneous deaths, KRS 397.1002 , 397.1003 .

Distributee, representative may recover amount of overpayment to, KRS 396.165 .

Divorce or adultery bars claim of spouses to property of each other, KRS 392.090 .

Dower and curtesy, KRS ch. 392.

Dower, estate willed in lieu of to revert to heirs of testator, KRS 392.120 .

Emblements pass with land, when, KRS 395.350 .

Estate may be distributed six months after qualification of representative, KRS 395.190 .

Failing or lapsed devise to pass as in cases of intestacy, KRS 394.500 .

Heirs hold title when patent or deed is issued to dead person, KRS 382.060 .

Heirs of loser at gambling may recover from winner, KRS 372.020 .

Inheritance and estate taxes, KRS ch. 140.

Inheritance tax, representative to pay before he delivers property to heirs, KRS 140.220 .

Killing person from whom inheritance expected, KRS 381.280 .

Nonresident, personal estate of to be distributed according to laws of residence, KRS 395.260 .

Suicide does not affect descent and distribution, Const., § 21.

Surviving spouse may renounce will, KRS 392.080 .

Waste committed during ancestor’s lifetime, heir may sue for, KRS 381.370 .

Wills, KRS ch. 394.

Will, validity of not affected by subsequent incompetency of witness, KRS 394.210 .

Kentucky Law Journal.

Noyes, The Descent and Distribution of Real and Personal Property in Kentucky, 34 Ky. L.J. 268 (1946).

Brown, The Settlement of a Decedent’s Estate, 42 Ky. L.J. 644 (1954).

Matthews, Dower, Principal and Income, Perpetuities, and Intestate Succession, 45 Ky. L.J. 111 (1956).

Skaggs and Erwin, The Horizontal Property Law of Kentucky, 51 Ky. L.J. 46 (1962).

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Comments, Pendleton v. Pendleton: An Equal Right of Inheritance for the Illegitimate?, 65 Ky. L.J. 712 (1976-77).

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comment, Illegitimate Intestate Succession Rights in Kentucky: “Why Brands They Us With Base: With Baseness? Bastardy? Base, Base?” 3 N. Ky. L. Rev. 196 (1976).

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Value, Form 233.22.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

391.020. Descent of real estate acquired from parent.

  1. When a person dies intestate and without issue, owning real estate of inheritance which is the gift of either of his parents, the parent who made the gift, if living, shall inherit the whole of such estate.
  2. If a person under the age of eighteen (18) dies without issue, having the title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and that parent’s kindred, and if there is none, then in like manner to the other parent and his kindred. The kindred of one parent shall not be so excluded by the kindred of the other parent, if the latter is more remote than the grandfather, grandmother, uncles and aunts of the intestate and their descendants.

History. 1400, 1401: amend. Acts 1968, ch. 100, § 9.

NOTES TO DECISIONS

1.Purpose.

The purpose of this statute is to prevent the estate of a parent from being distributed to strangers to his blood where any of his children die in infancy and without issue. Lanferman v. Vanzile, 150 Ky. 751 , 150 S.W. 1008, 1912 Ky. LEXIS 988 ( Ky. 1912 ).

2.Application.

This statute only applies to the case in which the real estate comes to the infant by gift, devise, or descent and not to the case in which the parent pays the purchase price and has the conveyance made to the child. Guier v. Bridges, 114 Ky. 148 , 70 S.W. 288, 24 Ky. L. Rptr. 945 , 1902 Ky. LEXIS 141 ( Ky. 1902 ). See Hagan v. Clemons, 78 S.W. 899, 25 Ky. L. Rptr. 1776 (1904).

It is only where the party dies while an infant and without issue that subsection (2) of this section is applicable. Bertram v. Witherspoon's Adm'r, 138 Ky. 116 , 127 S.W. 533, 1910 Ky. LEXIS 47 ( Ky. 1910 ). See Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ).

This section applies only where the title to the real estate owned by an infant comes to him from one of his parents. Huffman v. Hatcher, 178 Ky. 8 , 198 S.W. 236, 1917 Ky. LEXIS 680 ( Ky. 1917 ) ( Ky. 1917 ).

3.Issue.

The word “issue” as used in the part of this section referring to dying “without issue” includes an illegitimate child of the mother. Cherry v. Mitchell, 108 Ky. 1 , 55 S.W. 689, 21 Ky. L. Rptr. 1547 , 1900 Ky. LEXIS 1 ( Ky. 1 900).

4.Parent.

The word “parent” as used in this section means a legal parent. Blankenship v. Ross, 95 Ky. 306 , 25 S.W. 268, 15 Ky. L. Rptr. 708 , 1894 Ky. LEXIS 24 ( Ky. 1894 ).

5.Descendant.

A child of a deceased aunt is a “descendant” under this section and will inherit the share that her mother would have inherited had the mother survived the deceased nephew. Carnes v. Bingham, 134 Ky. 96 , 119 S.W. 738, 1909 Ky. LEXIS 354 ( Ky. 1909 ).

6.Gift from Parent.

Where a woman, prior to marriage, conveyed her land to her aunt who in turn reconveyed the land to her for life with remainder to her children and she died survived by an infant child, the child “derived” the land by gift from its mother under this statute. Connell v. Harper, 202 Ky. 406 , 259 S.W. 1017, 1924 Ky. LEXIS 727 ( Ky. 1924 ).

When a father conveys land to his son for a nominal consideration it is a gift under this section and the father inherits the land upon the death of the son intestate and without issue to the exclusion of the surviving mother. Yaden v. Moore, 233 Ky. 46 , 24 S.W.2d 927, 1930 Ky. LEXIS 492 ( Ky. 1930 ).

7.Descent of Real Estate.

Where a minor dies without issue after receiving realty from his deceased father and the father had six other children, two of whom were full brothers of the decedent and four were by a prior marriage, the descent is determined in accordance with the relationship of the kindred to the father rather than to the deceased son. White v. Hogge, 291 S.W.2d 22, 1956 Ky. LEXIS 361 ( Ky. 1956 ).

8.— Surviving Parent.

The surviving parent inherits the whole of real estate which he or she has given to a child who dies without issue. Bagby v. Bagby, 151 Ky. 558 , 152 S.W. 537, 1913 Ky. LEXIS 510 ( Ky. 1913 ).

9.— Kin of Parent.

Where an infant inherits property from his mother and dies, while an infant and without issue, the whole of the inherited estate passes to the brothers and sisters of the deceased mother to the exclusion of the surviving father of the infant. Holmes v. Lane, 136 Ky. 21 , 123 S.W. 318, 1909 Ky. LEXIS 453 ( Ky. 1909 ).

Where the mother devised property to her husband and he predeceased her survived by a son, the son took under the mother’s will as provided by KRS 394.400 , and upon his death while an infant and without issue his mother’s brothers and sisters inherited to the exclusion of his paternal grandparents. Banks v. Cornelison, 159 Ky. 793 , 169 S.W. 502, 1914 Ky. LEXIS 888 ( Ky. 1914 ).

Where land is inherited from the father and the infant dies survived only by his maternal grandparents and sons and daughters of his aunts and uncles on his paternal side, the sons and daughters of his uncles and aunts on his paternal side inherit to the exclusion of the maternal grandparents. Pulliam v. Parris, 187 Ky. 844 , 220 S.W. 1075, 1920 Ky. LEXIS 218 ( Ky. 1920 ).

Where an infant inherits land from his father and dies, during infancy and without issue, survived by his paternal grandmother and mother, the grandmother inherits, to the exclusion of the mother, and her sons and daughters inherit the land from her. Carr v. Hart, 232 Ky. 37 , 22 S.W.2d 432, 1929 Ky. LEXIS 385 ( Ky. 1929 ).

Where son and daughter each inherited a vested remainder interest in realty from their father, the daughter’s interest was inherited by her brother upon her death in infancy without issue; upon the son’s death in infancy without issue the interest he had inherited from his sister would descend to his mother and the interest he had inherited from his father would descend to his father’s kindred. Conlee v. Conlee, 300 Ky. 685 , 190 S.W.2d 43, 1945 Ky. LEXIS 634 ( Ky. 1945 ).

10.— Half-blood Kin.

Where an infant inherits land from his mother and dies while an infant and without issue, the whole estate so inherited descends to the infant’s maternal uncles and aunts, as his next of kindred, to the exclusion of half-brothers of the decedent. Gaddie v. Hogan, 181 Ky. 714 , 205 S.W. 781, 1918 Ky. LEXIS 598 ( Ky. 1918 ). See Carnes v. Bingham, 134 Ky. 96 , 119 S.W. 738, 1909 Ky. LEXIS 354 ( Ky. 1909 ).

11.— Adopted Child.

If an adopted child inherits property from his adoptive parents and dies an infant and without issue, the property so inherited passes to the kindred of the adoptive parents to the exclusion of the natural mother of the adopted child. Lanferman v. Vanzile, 150 Ky. 751 , 150 S.W. 1008, 1912 Ky. LEXIS 988 ( Ky. 1912 ).

12.— Posthumous Child.

Where testator devised his land to “my children,” a posthumous child took under the will and not from her brothers and sisters by way of contribution as a pretermitted child; therefore, on death of such child without issue, her interest in the land passed to her father’s kindred and not to her surviving mother. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ).

13.Dower and Curtesy.

Husband of infant who died without issue was entitled to curtesy as against kindred of parent from whom infant had derived real estate. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ).

Where an infant inherits land from his father, the surviving wife of the infant is entitled to dower. McCoy v. Ferguson, 249 Ky. 334 , 60 S.W.2d 931, 1933 Ky. LEXIS 518 ( Ky. 1933 ).

The ancestral property statute (this section) does not supersede, limit, or override the rights of dower or curtesy by a surviving spouse under KRS 392.020 . Francis v. Justice, 687 S.W.2d 868, 1985 Ky. App. LEXIS 557 (Ky. Ct. App. 1985).

14.Proceeds from Real Estate.

Where an infant receives land by devise from a parent and the land is sold pursuant to a court order, the fund to be reinvested, and the infant dies without issue, the fund realized from the sale of the land represents real estate and is covered by this section. Weisiger v. McDonald, 116 Ky. 862 , 76 S.W. 1080, 81 S.W. 687, 25 Ky. L. Rptr. 1053 , 26 Ky. L. Rptr. 416 , 1903 Ky. LEXIS 251 ( Ky. 1903 ), modified, 116 Ky. 872 , 81 S.W. 687 ( Ky. 1904 ).

Where an infant’s land has been sold under a condemnation proceeding and the infant dies while an infant and without issue the fund realized from the sale passes under this section as real estate. McCoy v. Ferguson, 249 Ky. 334 , 60 S.W.2d 931, 1933 Ky. LEXIS 518 ( Ky. 1933 ).

Cited:

Weisiger v. McDonald, 116 Ky. 862 , 25 Ky. L. Rptr. 1053 , 26 Ky. L. Rptr. 416 , 76 S.W. 1080, 81 S.W. 687, 1903 Ky. LEXIS 251 ( Ky. 1903 ); Layne v. Clark, 152 Ky. 310 , 153 S.W. 437, 1913 Ky. LEXIS 656 ( Ky. 1913 ); Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ); McDowell v. Kent, 175 Ky. 445 , 194 S.W. 374, 1917 Ky. LEXIS 335 ( Ky. 1917 ); Connell v. Harper, 202 Ky. 406 , 259 S.W. 1017, 1924 Ky. LEXIS 727 ( Ky. 1924 ); Bates v. Hanks, 262 Ky. 556 , 90 S.W.2d 743, 1935 Ky. LEXIS 793 ( Ky. 1935 ); Ragland v. Shrout, 476 S.W.2d 820, 1972 Ky. LEXIS 391 ( Ky. 1972 ).

Research References and Practice Aids

Kentucky Law Journal.

Ham, Kentucky Adopts the Uniform Partnership Act, Partnership Property, 43 Ky. L.J. 5 (1954).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

391.030. Descent of personal property — Exemption for surviving spouse and children — Withdrawal of money from bank by surviving spouse.

  1. Except as otherwise provided in this chapter, where any person dies intestate as to his or her personal estate, or any part thereof, the surplus, after payment of funeral expenses, charges of administration, and debts, shall pass and be distributed among the same persons, and in the proportions, to whom and in which real estate is directed to descend, except as follows:
    1. The personal estate of an infant shall be distributed as if he or she had died after full age;
    2. An alien may be distributee as though he or she were a citizen; and
    3. Personal property or money on hand or in a bank or other depository to the amount of thirty thousand dollars ($30,000) shall be exempt from distribution and sale and shall be set apart by the District Court having jurisdiction over the estate on application to the surviving spouse, or, if there is no surviving spouse, to the surviving children.
  2. The surviving spouse may, at any time before the property or money is set apart by the court, procure on petition from the Judge of the District Court having jurisdiction over the estate, an order authorizing the surviving spouse to withdraw from any bank or other depository not exceeding two thousand five hundred dollars ($2,500) belonging to the estate. Upon presentation of the order, the bank or depository shall permit the surviving spouse to withdraw the sum and shall lodge the order, endorsing thereon the amount withdrawn, with the circuit clerk who shall retain it in the clerk’s files to be considered in connection with further proceedings in the estate and the withdrawal shall be treated as a charge against the property of the estate exempt from distribution.
  3. In the application for the setting apart of property or money under subsection (1) of this section, the surviving spouse or, if there is no surviving spouse, the surviving children may make their selection out of the personal property of the estate to the extent that the value of the property selected does not exceed the amount of thirty thousand dollars ($30,000).
  4. Where any person dies testate:
    1. Personal property or money on hand or in a bank or other depository to the amount of thirty thousand dollars ($30,000) shall be exempt from distribution and sale and shall be set apart by the District Court having jurisdiction over the estate on application of the surviving spouse;
    2. If there is no surviving spouse, personal property or money on hand or in a bank or other depository bequeathed to surviving children to the amount of thirty thousand dollars ($30,000) shall be exempt from distribution and sale and shall be set apart by the District Court having jurisdiction over the estate on application by the surviving children;
    3. The exemption of the surviving spouse under paragraph (a) of this subsection is not conditioned upon the surviving spouse renouncing the will, and, in the event of renunciation, the surviving spouse shall be entitled to the exemption in addition and prior to determining the statutory share of the surviving spouse under KRS 392.080 ; and
    4. Subsection (3) of this section shall apply with respect to the surviving spouse provided that the surviving spouse shall first select from among the personal property of the residuary estate, then to the extent necessary from among the money on hand or on deposit specifically bequeathed under the will, and then to the extent necessary from among any other personal property specifically bequeathed under the will. Where the selection of the surviving spouse is made up, in whole or in part, from personal property or money on hand or on deposit specifically bequeathed to a beneficiary, such beneficiary shall have a right of contribution on the principles of KRS 394.420 to 394.490 unless the will otherwise directs, or it is necessarily to be inferred therefrom that the testator intended the same to fall on such beneficiary except that there shall be no right of contribution from the surviving spouse.

History. 1403: amend. Acts 1946, ch. 163; 1966, ch. 255, § 266; 1968, ch. 144, § 1; 1970, ch. 222, § 2; 1972, ch. 168, § 6; 1974, ch. 299, § 2; 1974, ch. 328, § 3; 1976 (Ex. Sess.), ch. 10, § 1; 1976 (Ex. Sess.), ch. 14, § 351, effective January 2, 1978; 1980, ch. 259, § 8, effective July 15, 1980; 1982, ch. 51, § 1, effective July 15, 1982; 1982, ch. 277, § 7, effective July 15, 1982; 1988, ch. 27, § 1, effective July 15, 1988; 1992, ch. 129, § 1, effective July 14, 1992; 2002, ch. 362, § 1, effective July 15, 2002; 2010, ch. 21, § 9, effective July 15, 2010; 2020 ch. 24, § 1, effective July 15, 2020.

NOTES TO DECISIONS

1.Purpose.

The primary purpose of this section is to direct the manner in which, and to ask whom, the personal estate of an intestate shall descend in the event there is a surplus. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

2.Surplus.

The word “surplus” applies to that part of the estate, or assets, remaining in the hands of the administrator after the payment or allotment of some prior or superior claim. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

3.Infant Children.

“Infant children” (now children) as referred to in this section means the children of the intestate and not his stepchildren. Howland's Adm'r v. Harr, 123 Ky. 732 , 97 S.W. 358, 30 Ky. L. Rptr. 53 , 1906 Ky. LEXIS 204 ( Ky. 1906 ) (Decision prior to 1982 amendment).

4.Personal Property.

This section and KRS 392.020 do not conflict. The surplus personalty provided for in KRS 392.020 is the personalty remaining after the debts, funeral expenses, and widow’s exemption have been deducted from the gross personalty possessed by decedent at the time of his death. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

Federal law governs the rights of co-owners of United States savings bonds and the state law as to intestate succession must yield thereto. Marcum v. Marcum, 377 S.W.2d 62, 1964 Ky. LEXIS 476 ( Ky. 1964 ).

5.— Wrongful Death Damages.

Damages recovered for wrongful death become part of the estate of the decedent provided that there are living none of the persons named in KRS 411.130 . Sturges v. Sturges, 126 Ky. 80 , 102 S.W. 884, 31 Ky. L. Rptr. 537 , 1907 Ky. LEXIS 27 ( Ky. 1907 ).

6.— Property Not Included.

This section is applicable only to property which the intestate owned and of which he died seized, and is not applicable to a trust fund set up for the use and benefit of the husband during his life with remainder to his heirs according to the statutes of descent. Vandyke v. Vandyke, 223 Ky. 49 , 2 S.W.2d 1057, 1928 Ky. LEXIS 280 ( Ky. 1928 ).

This statute is not applicable where the wife is the beneficiary of an insurance policy on the life of her husband, as these funds are not part of the estate of her deceased husband. Thacker v. Cook, 236 Ky. 159 , 32 S.W.2d 738, 1930 Ky. LEXIS 701 ( Ky. 1930 ).

7.— Property Subject to Debts.

This section is limited by KRS 404.040 to the extent that the surviving husband is liable for “necessaries,” including funeral expenses, furnished to the deceased wife. Palmer v. Turner, 241 Ky. 322 , 43 S.W.2d 1017, 1931 Ky. LEXIS 81 ( Ky. 1931 ).

The proceeds of a United States government converted insurance policy paid to the estate of the insured is subject to the insured soldier’s debts under this section. First Nat'l Bank v. Cann's Ex'x, 247 Ky. 618 , 57 S.W.2d 461, 1932 Ky. LEXIS 879 ( Ky. 1932 ).

8.Exempt Property.

The failure of the widow to claim her exemption in her first settlement with the administrator is not a bar to her recovering it where there is money in the estate sufficient to pay it. Rau v. Rowe, 188 Ky. 524 , 222 S.W. 1070, 1920 Ky. LEXIS 313 ( Ky. 1920 ).

A widow and infant children will be given $750 of the surplus personal property for their immediate needs and this amount is excluded from the claims of the deceased husband’s creditors and heirs. Wyly v. Kallenbach, 256 Ky. 391 , 76 S.W.2d 34, 1934 Ky. LEXIS 411 ( Ky. 1934 ) (Decision prior to 1946 amendment).

When personalty is worth less than $750, widow is entitled to all of it. Fitzpatrick's Adm'r v. Fitzpatrick, 288 Ky. 53 , 155 S.W.2d 463, 1941 Ky. LEXIS 48 ( Ky. 1941 ) (Decision prior to 1946 amendment).

In action to settle estate, statute providing for a widow’s exemption applies not only against the rights of heirs, but also against funeral expenses, costs of administration and debts. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

It was not prejudicial for the county court to allow a surviving widow an allowance of $500 on application made after the appointment of an administrator, as she was entitled to have $1,500 (now $7,500) set aside for her. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ).

Where the antenuptial agreement was declared not a valid and enforceable agreement, the spouse of the decedent was entitled to the statutory spouse’s exemption provided for in subdivision (1)(c) of this section. Luck v. Luck, 711 S.W.2d 860, 1986 Ky. App. LEXIS 1155 (Ky. Ct. App. 1986).

9.— Property Not Subject to.

The widow is not entitled to an allowance out of property of the deceased husband which was attached during his lifetime by his creditors if the property so attached was not exempt from execution. Blake v. Durrell, 103 Ky. 600 , 45 S.W. 883, 20 Ky. L. Rptr. 270 , 1898 Ky. LEXIS 102 ( Ky. 1898 ).

Courts are without power to subject real estate belonging to decedent’s estate to payment of a deficiency in exemptions granted widow by statute. Kilburn v. Holliday, 295 Ky. 843 , 175 S.W.2d 516, 1943 Ky. LEXIS 347 ( Ky. 1943 ).

The workers’ compensation benefit paid to the child of the deceased could not be used to offset the statutory exemption that entitles the spouse or child to a certain amount of the decedent’s property, because insurance policy benefits payable directly to a beneficiary do not become part of the decedent’s estate. Crittendon v. Saxon, 32 S.W.3d 500, 1999 Ky. App. LEXIS 140 (Ky. Ct. App. 1999).

10.— Payment of Debts.

The property set aside for the widow cannot be subjected to payment of the debts of the decedent. Thompson v. Thompson, 117 Ky. 526 , 78 S.W. 418, 25 Ky. L. Rptr. 1626 , 1904 Ky. LEXIS 212 ( Ky. 1904 ).

The widow is permitted to recover from the estate the value of personal property of her deceased husband which should have been set aside to her as exempt under this section and which she has used to pay debts of the estate. Kilburn v. Holliday, 295 Ky. 843 , 175 S.W.2d 516, 1943 Ky. LEXIS 347 ( Ky. 1943 ).

11.— Division of Exempt Property.

Upon the death of one of the infants (now just children), for whose use and benefit money or property has been set aside, the survivors are entitled to the whole property or fund so set aside. Wilson v. Parson's Adm'r, 106 Ky. 385 , 50 S.W. 684, 20 Ky. L. Rptr. 1931 , 1899 Ky. LEXIS 55 ( Ky. 1899 ) (Decision prior to 1982 amendment).

Where the deceased was survived by a wife and six infant (now just children) children and the wife was confined in the penitentiary and could not live with the infant children, she was entitled to one-seventh of the exempt property and the remainder should go to the surviving infant children. Eversole v. Eversole, 169 Ky. 793 , 185 S.W. 487, 1916 Ky. LEXIS 779 ( Ky. 1916 ) ( Ky. 1916 ) (Decision prior to 1982 amendment).

Where it is impossible for any reason for the widow and infant (now just children) children to maintain a home and enjoy the exempt property, the property should be divided between them, if the property cannot be divided, then it should be sold and the proceeds equally divided between the widow and infant children. Landrum v. Landrum, 187 Ky. 196 , 218 S.W. 717, 1920 Ky. LEXIS 99 ( Ky. 1920 ) (Decision prior to 1982 amendment).

Where widow and children are entitled to an amount of exempt property the widow is entitled to control and custody of the property and it will not be divided between her and the children as long as she provides a home for the children though they do not live with her through no fault of her own. Crain v. West, 191 Ky. 1 , 229 S.W. 51, 1921 Ky. LEXIS 260 ( Ky. 1 921).

Where the deceased was survived by a widow and infant daughter, who was a child of the deceased by a former marriage, and who never lived with her father and stepmother, and there was ill feeling between the widow and the stepchild, and both had married since the death of the deceased, the exempt property should be divided equally between the widow and stepchild. Wheeldon Adm'r v. Barrett's Guardian, 253 Ky. 737 , 70 S.W.2d 11, 1934 Ky. LEXIS 721 ( Ky. 1934 ) (Decision prior to 1982 amendment).

The exempt property should be divided between the widow and infant children where the widow maintained no home but lived with her parents in a small home occupied by four other persons, and the infants were her stepchildren and never lived with her and her deceased husband but with their grandparents. Allen v. Allen's Adm'r, 262 Ky. 762 , 91 S.W.2d 55, 1936 Ky. LEXIS 98 ( Ky. 1936 ).

Children who refuse to live with their widowed stepmother who maintains a home to which they have access are not entitled to a division of the exempt property. Berger v. Berger, 264 Ky. 229 , 94 S.W.2d 620, 1936 Ky. LEXIS 302 ( Ky. 1936 ).

12.— Duty of Administrator.

The refusal of the administrator to sell the personal property of the estate and pay the surviving widow the allowance made under this section constitutes a conversion on the part of the administrator. He must sell sufficient of the estate to pay this allowance. Meyers' Adm'r v. Meyers, 244 Ky. 248 , 50 S.W.2d 81, 1932 Ky. LEXIS 392 ( Ky. 1932 ).

13.— Separate Agreements.

The widow may relinquish her rights under this section by an antenuptial contract but the rights of surviving infant (now just children) children are not thereby affected and they are entitled to have the exempt property set aside for their use and benefit. Brown v. Brown's Adm'r, 80 S.W. 470, 25 Ky. L. Rptr. 2264 , 1904 Ky. App. LEXIS 9 (Kan. Ct. App. 1904) (Decision prior to 1982 amendment).

Widow who entered into contract with the surviving children to sell “all the real and personal property” of the deceased husband and father and divide the proceeds equally between them thereby relinquished her right to the exempt property provided for in this section. Teater v. Teater, 221 Ky. 732 , 299 S.W. 729, 1927 Ky. LEXIS 816 ( Ky. 1927 ).

Where, pursuant to a good faith compromise, the son of the testator paid his sister a sum substantially in excess of the amount bequeathed her by the will, he furnished her adequate consideration for her agreement to relinquish all her claim to the estate. Murphy v. Henry, 311 Ky. 799 , 225 S.W.2d 662, 1949 Ky. LEXIS 1247 ( Ky. 1949 ).

Where widow entered into an agreement giving up certain rights in return for household goods, furniture, farm equipment and a life estate in realty it was proper to award her the widow’s exemption where there is no evidence that she agreed to relinquish it. Justice v. Justice, 237 S.W.2d 866, 1951 Ky. LEXIS 788 ( Ky. 1951 ).

A wife may by separation agreement relinquish her right to the statutory exemption, but her intention to relinquish must be clearly shown although no particular words are necessary. King v. King, 274 S.W.2d 656, 1954 Ky. LEXIS 1235 ( Ky. 1954 ).

Where husband and wife enter an agreement in contemplation of separation by which each is to transfer certain properties to the other and the wife relinquishes all dower and homestead interests in the husband’s realty and the transfers are executed in accordance with the agreement and then the parties are reconciled the rule that a separation is nullified upon reconciliation is not applicable because the agreement was fully executed and the court must look to the intent of the parties in determining the effect of the agreement at the death of the husband on the widow’s exemption. King v. King, 274 S.W.2d 656, 1954 Ky. LEXIS 1235 ( Ky. 1954 ).

14.— Forfeiture of Rights.

The wife who voluntarily leaves her husband and lives in adultery forfeits her right under the provisions of this section. Bond v. Bond's Adm'r, 150 Ky. 389 , 150 S.W. 363, 1912 Ky. LEXIS 890 ( Ky. 1912 ).

15.— Priority of Claims.

The widow’s exemption allowed by this section is prior and superior to the claim of an undertaker, where the deceased’s personal estate is insufficient to discharge both the claim and the exemption. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

The widow’s exemption is not entitled to preference over a mortgage. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

A widow’s exemption is inferior to a labor lien. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

A widow’s exemption provided by this section is superior to an undertaker’s claim. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

The fee of the attorney for the administrator and other costs of administration are superior to the widow’s claim for funeral expenses and distributable share, but is inferior to the widow’s exemption under subsection (1) (c) of this section. Bryant's Adm'r v. Bryant, 269 S.W.2d 219, 1954 Ky. LEXIS 968 ( Ky. 1954 ).

The widow’s exemption is inferior to an unrecorded chattel mortgage. Graham v. Graham's Adm'x, 306 S.W.2d 831, 1957 Ky. LEXIS 56 ( Ky. 1957 ).

16.— Vests at Death.

Widow’s right to exempt property vests at the very instant of her husband’s death and if she dies before it is set apart her representative may recover such property or its value. Mallory's Adm'r v. Mallory's Adm'r, 92 Ky. 316 , 17 S.W. 737, 13 Ky. L. Rptr. 579 , 1891 Ky. LEXIS 160 ( Ky. 1891 ) (decided under prior law).

The right to the exempt property vests in the widow and infant children upon the death of the husband and father, and is not forfeited by their removal from Kentucky. O'Hara v. O'Hara's Adm'r, 182 Ky. 260 , 206 S.W. 462, 1918 Ky. LEXIS 353 ( Ky. 1918 ).

The right to the exempt property vests in the widow upon the death of her husband, and if she dies before it is set apart for her and her representative may recover the property or its value. Frye's Adm'r v. Frye's Adm'x, 258 Ky. 554 , 80 S.W.2d 584, 1935 Ky. LEXIS 203 ( Ky. 1935 ).

Upon the death of a person intestate the property specifically exempted by statute from distribution and sale at once ceases to be a part of his estate, vests absolutely in the widow or distributees, as the case may be, and it is the duty of the administrator to see that the exempted articles are set apart to them. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

17.Deceased Killed by Spouse.

Where husband killed wife, to the extent wife’s will named a residuary legatee other than her husband, proceeds of insurance policies of which husband was the beneficiary were payable under KRS 381.280 to the executor of the wife’s estate for distribution to such legatee subject to payment of debts and other claims and charges against the estate; however, if the husband were the only named legatee the proceeds would pass as intestate property to wife’s heirs and as such would also be subject to any claims and charges against the estate. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

18.Spouse’s Will Renounced.

A surviving spouse is not required to renounce the decedent’s will in order to assert a claim for the exemption provided for by this statute. Sanders v. Pierce, 979 S.W.2d 457, 1998 Ky. App. LEXIS 54 (Ky. Ct. App. 1998).

Cited:

McDonald v. McDonald, 96 Ky. 209 , 16 Ky. L. Rptr. 412 , 28 S.W. 482, 1894 Ky. LEXIS 114 ( Ky. 1894 ); Oster’s Ex’r v. Ohlman, 187 Ky. 341 , 219 S.W. 187, 1920 Ky. LEXIS 125 ( Ky. 1920 ); Stockyards Bank of Louisville v. Hudson’s Adm’x, 227 Ky. 476 , 13 S.W.2d 499, 1929 Ky. LEXIS 901 ( Ky. 1929 ); Mason’s Adm’r v. Mason’s Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 744 ( Ky. 1931 ); Broom v. Klein, 309 Ky. 224 , 217 S.W.2d 206, 1949 Ky. LEXIS 660 ( Ky. 1949 ); Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837, 1950 Ky. LEXIS 906 ( Ky. 1950 ); Russell v. Johnson, 252 S.W.2d 416, 1952 Ky. LEXIS 990 ( Ky. 1952 ); See v. See, 293 S.W.2d 225, 1956 Ky. LEXIS 58 ( Ky. 1956 ); Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 10 2 ( Ky. 1960 ); Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ); Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Crain v. Dean, 741 S.W.2d 655, 1987 Ky. LEXIS 256 ( Ky. 1987 ); Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ); Willett v. Estate of Vessells, 629 S.W.3d 20, 2021 Ky. App. LEXIS 84 (Ky. Ct. App. 2021).

Opinions of Attorney General.

The words “or any part thereof,” in subsection (1) upon a common sense reading and by plain meaning denote that a surviving widow or spouse can take a statutory share where the testator dies partially intestate. OAG 78-135 .

Research References and Practice Aids

Cross-References.

Administration of estates, dispensing with by agreement, KRS 395.470 .

Adultery or divorce bars claim of spouses to property of each other, KRS 392.090 .

Dower, estate willed in lieu of to revert to heirs of testator, KRS 392.120 .

Emblements, assets of representative when severed prior to December 31 and intestate dies in March or later, KRS 395.350 .

Estate for life of another to go to representative upon death of tenant, KRS 395.340 .

Simultaneous death act, KRS Chapter 397.

Wrongful death, distribution of sum recovered in action for, KRS 411.130 .

Kentucky Bench & Bar.

Hargrove, 2010 Changes to the Kentucky Trust & Estate Practice, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 12.

Kentucky Law Journal.

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Application and Order for Surviving Spouse’s Exemption, Form 230.11.

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Exempt Property, Form 254.03.

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Withdraw Funds, Form 254.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.1.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.6.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.9.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Support of the Family, § 16.7.

391.033. Limitation on right to estate if parent has abandoned care and maintenance of child.

  1. A parent who has willfully abandoned the care and maintenance of his or her child shall not have a right to intestate succession in any part of the estate and shall not have a right to administer the estate of the child, unless:
    1. The abandoning parent had resumed the care and maintenance at least one (1) year prior to the death of the child and had continued the care and maintenance until the child’s death; or
    2. The parent had been deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent had substantially complied with all orders of the court requiring contribution to the support of the child.
  2. Any part of a decedent child’s estate prevented from passing to a parent, under the provisions of subsection (1) of this section, shall pass through intestate succession as if that parent has failed to survive the decedent child.
  3. This section may be cited as Mandy Jo’s Law.

History. Enact. Acts 2000, ch. 414, §§ 1, 3, effective July 14, 2000.

NOTES TO DECISIONS

1.Evidence of Abandonment.

Where a father was behind in child support, was questionable in visitation, and lacked involvement in a child’s life, the father willfully abandoned the child and was precluded from sharing in a wrongful death settlement by Mandy Jo’s Law, KRS 411.137 , 391.033 . Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

For the purposes of applying Mandy Jo’s Law, KRS 411.137 , 391.033 , “abandon” means neglect and refusal to perform natural and legal obligations to care and support, withholding of parental care, presence, opportunity to display voluntary affection and neglect to lend support and maintenance; it means also the failure to fulfill responsibility of care, training and guidance during the child’s formative years. Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the lack of a visitation order did not bar holding the father’s lack of contact with the child against the father because the father was not relieved of parental obligations. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the father’s payment of court-ordered child support was not determinative because the father’s obligation of “care and maintenance” required more. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

A father was precluded from recovering the father’s intestate share of the settlement proceeds connected with the wrongful death of the father’s adult child because the father willfully abandoned the child. While the father maintained support payments, the father had not seen the child, nor had significant interaction within 15 years of the child’s death, at no time did the father seek visitation, formally or informally, with the child, and the doctrine of equitable estoppel did not bar the mother from claiming abandonment. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Trial court did not err in finding appellant had abandoned his stillborn infant daughter and was consequently not entitled to any settlement proceeds or distribution from her estate under Mandy Jo’s Law, because the trial court found clear intent on his part to abandon the child as evidenced by his fleeing after the mother informed him she was pregnant. Miller v. Bunch, 2021 Ky. App. LEXIS 16 (Ky. Ct. App. Feb. 5, 2021).

2.Burden of Proof.

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the applicable burden of proof was a preponderance of the evidence because the issue involved the receipt of money. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the child’s estate had no burden of proof as to distribution of the proceeds because (1) the proceeds were not part of the estate, and (2) the estate’s administrator had no interest in the proceeds’ distribution, once the proceeds were recovered. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

The rights at stake in a case arising under the Kentucky Mandy Jo’s Law do not warrant a heightened standard of proof. Accordingly, trial courts must use the preponderance of the evidence standard when considering claims under Mandy Jo’s Law. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Declaratory Judgment Asserting “’Mandy Jo’s Law”, Form 141.04.

391.035. District court hearing to determine persons entitled to property passing by intestate succession.

  1. If real or personal property passes by the laws of intestate succession, or under a will to a beneficiary not named in the will, proceedings may be had in the District Court to determine the persons entitled to the property.
    1. If an estate is in process of administration, the executor, administrator, or any person claiming an interest in the property may file a motion in the District Court where administration is in process. If there is no pending administration or administration has been dispensed with, any person claiming an interest in the property may file a motion in the District Court of the county in which the decedent last resided or, if the decedent was not a Kentucky resident, in the District Court of the county in which the property, or the greater part thereof, is located; (2) (a) If an estate is in process of administration, the executor, administrator, or any person claiming an interest in the property may file a motion in the District Court where administration is in process. If there is no pending administration or administration has been dispensed with, any person claiming an interest in the property may file a motion in the District Court of the county in which the decedent last resided or, if the decedent was not a Kentucky resident, in the District Court of the county in which the property, or the greater part thereof, is located;
    2. The motion shall set forth all of the facts known to the movant relating to the matter, including the names, ages, and addresses of all persons who are or may be entitled to share in the property and their relationship to the decedent or to the class of beneficiaries entitled to share. The motion shall also describe the property under consideration and an estimate of its value;
    3. The motion shall be served in a manner authorized by the Rules of Civil Procedure for the initiation of a civil action and shall set forth the place and time, which shall not be less than twenty (20) days from the date of service, when the motion will come on for hearing.
  2. Upon the hearing on the motion, any person claiming an interest in the property may introduce proof in support of his claim and the court may entertain the admission of any other relevant evidence to aid the court in determining the persons entitled to share in the property.
  3. After hearing all the evidence, the court shall enter judgment in which the names, ages, and addresses of the persons entitled to share in the property are set forth and the proportionate interest of each. The judgment shall be conclusive evidence of the facts determined therein as against all parties, whether known or unknown, to the proceeding.
  4. In a case where some or all of the property is real property located in this state, a certified copy of the judgment shall be recorded in the office of the appropriate county clerk in lieu of the affidavit required by KRS 382.120 . The judgment shall be conclusive evidence of the facts determined therein as against all parties, whether known or unknown, to the proceeding.
  5. Any party may at any time prior to judgment institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(2).
  6. Any aggrieved party may, no later than thirty (30) days from the date of the judgment, institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(1)(b).
  7. Any unknown defendants before the court by constructive service alone shall be entitled to the protection afforded by Civil Rule 4.11.
  8. No proceedings under this section shall be conducted by or before a commissioner of the District Court.

History. Enact. Acts 1988, ch. 90, § 2, effective July 15, 1988; 1998, ch. 420, § 1, effective July 15, 1998; 1998, ch. 517, § 10, effective September 1, 1998.

Legislative Research Commission Notes.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 420 and 517 which do not appear to be in conflict and have been codified together.

(6/24/2003). Under the authority of KRS 7.136 , the Reviser of Statutes has changed a reference in subsection (6) of this section from “KRS 24A.120(1)(b)” to “KRS 24A.120(2).”

NOTES TO DECISIONS

Cited in:

Willett v. Estate of Vessells, 629 S.W.3d 20, 2021 Ky. App. LEXIS 84 (Ky. Ct. App. 2021).

391.040. Descendants of distributees take per stirpes.

When any or all of a class first entitled to inherit are dead, leaving descendants, such descendants shall take per stirpes the share of their respective deceased parents.

History. 1394.

NOTES TO DECISIONS

Cited:

Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ).

Research References and Practice Aids

Cross-References.

Issue of devisee who is dead at time of execution of will or death of devisor take devisee’s share, KRS 394.400 .

Kentucky Law Journal.

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

391.050. Collaterals of the halfblood — Inheritance by.

Collaterals of the halfblood shall inherit only half as much as those of the wholeblood, or as ascending kindred, when they take with either.

History. 1395.

NOTES TO DECISIONS

1.Application.

Where the property of an intestate passes under KRS 391.010 to his maternal and paternal kindred and on one side there is only a cousin by the half blood and there are several cousins by full blood on the other, each side takes one half, because this section applies only within a moiety after the division into halves. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

2.Paternal and Maternal Kindred.

Where there were no heirs above or below the cousin level, one-half of the estate would go to the paternal kindred and the other half to the maternal kindred, notwithstanding that the only heir on the maternal side was a daughter of a maternal half-uncle. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

3.Illegitimate Child.

The relationship of an illegitimate child to the legitimate children, where he inherits from them, is that of a collateral of half blood under this section. Stevenson v. Washington's Adm'r, 231 Ky. 233 , 21 S.W.2d 274, 1929 Ky. LEXIS 252 ( Ky. 1929 ).

4.Brothers and Sisters.

Brothers and sisters of the half blood are members not of a succeeding class but of the same class as the full brothers and sisters. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

Two half sisters of the deceased were not barred from intestate succession by the existence of a daughter of a sister of the full blood. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

5.Half-blood Kin.

Where one dies intestate survived by his mother and four half-sisters, the mother takes one-half of his estate and the other one-half goes to his half-sisters in equal parts. Berg v. Berg's Adm'r, 105 Ky. 80 , 48 S.W. 432, 20 Ky. L. Rptr. 1083 , 1898 Ky. LEXIS 249 ( Ky. 1898 ).

Where one dies intestate survived only by a full brother and a half-sister, the full brother takes two-thirds and the half-sister takes one-third. Covington v. Beck, 219 Ky. 84 , 292 S.W. 752, 1927 Ky. LEXIS 295 ( Ky. 1927 ).

Where an infant inherited land from his father and then died while an infant and without issue, the land passed to the father’s kindred under KRS 391.020 and not to his half-brothers and half-sisters under this section. McCoy v. Ferguson, 249 Ky. 334 , 60 S.W.2d 931, 1933 Ky. LEXIS 518 ( Ky. 1933 ).

Where a minor dies without issue after receiving realty from his deceased father and the father had six other children, two of whom were full brothers of the decedent and four were by a prior marriage, the descent is determined in accordance with the relationship of the kindred to the father rather than to the deceased son. White v. Hogge, 291 S.W.2d 22, 1956 Ky. LEXIS 361 ( Ky. 1956 ).

Where an intestate was survived by descendants of brothers of the half blood and aunts and uncles of the whole blood, the descendants of the brothers of the half blood inherited the entire estate. Ragland v. Shrout, 476 S.W.2d 820, 1972 Ky. LEXIS 391 ( Ky. 1972 ).

Cited:

West v. Hardwick’s Ex’r, 301 Ky. 312 , 191 S.W.2d 385, 1945 Ky. LEXIS 724 ( Ky. 1945 ); Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Illegitimacy and Paternity Proceedings, § 31.7.

391.060. Title may be inherited through alien.

When title is acquired by descent, it shall be no bar to a person taking title through descent that any ancestor through whom he derives his descent from the intestate is or has been an alien.

History. 1396.

Research References and Practice Aids

Cross-References.

Alien may inherit and pass property by descent, when, KRS 381.290 to 381.340 .

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

391.070. Posthumous child — Inheritance by.

A child born of a widow, within ten (10) months after the death of the intestate, shall inherit from him in the same manner as if he were in being at the time of the intestate’s death.

History. 1399.

NOTES TO DECISIONS

1.Judicial Sale of Parent’s Land.

The rights of a posthumous child are affected as regards her inheritance from her father by a judicial sale of the property at the instigation of the guardian of other children for the purposes of division of the estate. Massie v. Hiatt's Adm'r, 82 Ky. 314 , 6 Ky. L. Rptr. 176 , 1884 Ky. LEXIS 81 (Ky. Ct. App. 1884) (decided under prior law).

A posthumous child’s inheritance cannot be affected by a judicial sale of the father’s land before her birth under a judgment taken against the father in his lifetime. Cole v. Lewis, 159 Ky. 747 , 169 S.W. 490, 1914 Ky. LEXIS 883 ( Ky. 1914 ).

Research References and Practice Aids

Cross-References.

Posthumous child, share of taken from residuary estate, KRS 394.460 .

Posthumous child treated as devisee, KRS 394.470 .

Pretermitted child to receive same share as in case of intestacy, KRS 394.382 .

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

391.080. Adopted child; inheritance by and from. [Repealed.]

Compiler’s Notes.

This section (3316-8) was repealed by Acts 1950, ch. 125, § 33.

391.090. Bastards — Inheritance from and by — Effect of marriage of parents. [Repealed.]

Compiler’s Notes.

This section (1397, 1398) was repealed by Acts 1986, ch. 331, § 63, effective July 15, 1986.

This section was declared unconstitutional in Rudolph v. Rudolph, 556 S.W.2d 152 (Ky. Ct. App. 1977) and Pendleton v. Pendleton, 560 S.W.2d 538 ( Ky. 1977 ). The Supreme Court held that its decision should have no retroactive effect upon the devolution of any title occurring before April 26, 1977, except for those specific instances in which the dispositive constitutional issue of equal protection was then in the process of litigation.

391.100. Children of illegal or void marriages considered as if born in lawful wedlock.

The issue of all illegal or void marriages is considered as if born in lawful wedlock.

History. 2098: amend. Acts 1974, ch. 49, § 5; 1984, ch. 16, § 8, effective July 13, 1984.

NOTES TO DECISIONS

1.Application.

This section is applicable to a child begotten before marriage but born thereafter, and makes such a child legitimate, even though the marriage is bigamous. Bates v. Meade, 174 Ky. 545 , 192 S.W. 666, 1917 Ky. LEXIS 227 ( Ky. 1917 ). See Swinney v. Klippert, 50 S.W. 841, 20 Ky. L. Rptr. 2014 (1899).

2.Bigamy.

Under law providing that the issue of a void or illegal marriage shall be legitimate, the issue of a bigamous marriage is legitimate even though the bigamous marriage was entered into with full knowledge on the part of both parties that one of them had a living wife from which he had not secured a divorce or annulment. Harris v. Harris, 85 Ky. 49 , 2 S.W. 549, 8 Ky. L. Rptr. 727 , 1887 Ky. LEXIS 12 ( Ky. 1887 ) (decided under prior law).

The issue of a bigamous marriage, entered into by residents of Kentucky in the state of Illinois, were legitimate where the parties returned to Kentucky and lived as man and wife and where the children were born in Kentucky. Leonard v. Braswell, 99 Ky. 528 , 36 S.W. 684, 18 Ky. L. Rptr. 395 , 1896 Ky. LEXIS 119 ( Ky. 1896 ).

This section is applicable and the issue of a bigamous marriage contracted with full knowledge on the part of all concerned of the already existing marriage of one of the parties with another is legitimate. Martin v. Coburn, 266 Ky. 176 , 98 S.W.2d 483, 1936 Ky. LEXIS 628 ( Ky. 1936 ).

3.Common-law Marriage.

Where common-law marriage in a foreign state was void because one party was legally married, child of the void common-law marriage was made legitimate by this section, and was entitled to inherit the property of her father’s brother. Copenhaver v. Hemphill, 314 Ky. 356 , 235 S.W.2d 778, 1951 Ky. LEXIS 655 ( Ky. 1951 ).

4.Incestuous Marriage.

Children born as a result of an incestuous marriage are made illegitimate by an annulment of the marriage on the grounds of incest during the lifetime of the parties to the marriage. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ) (Decision prior to 1984 amendment).

Illegitimate children under incestuous marriage could inherit from their mother but not from their father. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ) (Decision prior to 1984 amendment).

Cited:

McGoodwin v. Shelby, 181 Ky. 230 , 204 S.W. 171, 1918 Ky. LEXIS 523 ( Ky. 1918 ); Smith v. Smith, 242 S.W.2d 860, 1951 Ky. LEXIS 1080 (Ky. Ct. App. 1951).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comment, Illegitimate Intestate Succession Rights in Kentucky: “Why Brands They Us With Base: With Baseness? Bastardy? Base, Base?” 3 N. Ky. L. Rev. 196 (1976).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, § 10.15.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.1, 31.2, 31.5.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.4b, 1.4d, 1.4e.

391.105. Determination of rights of intestate succession in the case of a person born out of wedlock.

  1. For the purpose of intestate succession, if a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the natural mother. That person is also a child of the natural father if:
    1. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
    2. In determining the right of the child or its descendants to inherit from or through the father:
      1. There has been an adjudication of paternity before the death of the father; or
      2. There has been an adjudication of paternity after the death of the father based upon clear and convincing proof;
    3. In determining the right of the father or his kindred to inherit from or through the child:
      1. There has been an adjudication of paternity before the death of the child; or
      2. There has been an adjudication of paternity after the death of the child based on clear and convincing proof and the evidence in such adjudication shall have demonstrated that the father openly treated the child as his, and the father did not follow a consistent policy of refusing to support the child on the ground of nonpaternity.
  2. The terms and conditions set out in this section shall also apply in actions brought pursuant to KRS 411.130 and 411.135 .

History. Enact. Acts 1988, ch. 90, § 3, effective July 15, 1988.

NOTES TO DECISIONS

1.In General.

Illegitimate daughter of a decedent who died in 1962 had no claim to real property owned by the decedent when he died; former KRS 391.090 , which governed intestate succession at that time, did not allow illegitimate children to inherit from their fathers, and a 1977 ruling striking down the statute as unconstitutional was not retroactive. Turner v. Perry County Coal Corp., 242 S.W.3d 658, 2007 Ky. App. LEXIS 96 (Ky. Ct. App. 2007), cert. denied, 555 U.S. 818, 129 S. Ct. 80, 172 L. Ed. 2d 29, 2008 U.S. LEXIS 6840 (U.S. 2008).

2.Equal Protection Clauses.

The proof requirement of the statute does not violate the equal protection clauses of the federal or state constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

391.110. Slave marriage valid; issue legitimate. [Repealed.]

Compiler’s Notes.

This section (1399a, 1399b-1, 1399b-2) was repealed by Acts 1966, ch. 184, § 8.

391.120. Descendants have equal rights.

No tenant in common shall have any privilege over another in any election, division or matter to be done or made, concerning lands which have descended to them.

History. 1402.

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

391.130. Descendants may recover annuity not fully earned at annuitant’s death.

Whenever any person entitled to an annuity dies within the year, and before the annuity is fully earned, the heirs or personal representative of that person may recover such proportion of the entire amount of the annuity as the time of the year already elapsed at the date of the death of the annuitant bears to the entire year.

History. 2070.

Research References and Practice Aids

Cross-References.

Obligation to person dead at time of execution of obligation may be enforced by representative, KRS 371.060 .

Rent to be apportioned between representative and heirs of landlord who dies before it is due, KRS 395.360 .

391.140. Advancements — Effect on descendant’s, widow’s, and widower’s share.

  1. Any real or personal property or money, given or devised by a parent or grandparent to a descendant, shall be charged to the descendant or those claiming through him in the division and distribution of the undevised estate of the parent or grandparent. The person to whom the property or money was given or devised shall receive nothing further from the estate until the shares of the other descendants are made proportionately equal with his, according to his descendable and distributable share of the whole estate, real and personal, devised and undevised. The advancement shall be estimated according to the value of the property when given. The maintaining or educating or the giving of money, to a child or grandchild, without any view to a portion or settlement in life, shall not be deemed an advancement.
  2. Advancements made to distributees shall not be taken as a part of the decedent’s personal estate in estimating the distributable share of the widow or widower in the estate.

History. 1407, 1408: amend. Acts 1974, ch. 386, § 76.

NOTES TO DECISIONS

1.Purpose.

While the character and value of the ancestor’s estate, the amount given to the children, and the purposes for which they are to be applied may be considered, the object of this section is to procure equality in the distribution of undevised estates. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

2.Application.

This section is applicable to cases of partial intestacy. Walters v. Neafus, 136 Ky. 756 , 125 S.W. 167, 1910 Ky. LEXIS 539 ( Ky. 1910 ).

This section is not applicable where the entire estate of the decedent is disposed of by his will. Gulley v. Lillard's Ex'r, 145 Ky. 746 , 141 S.W. 58, 1911 Ky. LEXIS 934 ( Ky. 1911 ). See Melton v. Sellars, 167 Ky. 704 , 181 S.W. 346, 1916 Ky. LEXIS 464 ( Ky. 1916 ); Brewer's Adm'r v. Brewer, 181 Ky. 400 , 205 S.W. 393, 1918 Ky. LEXIS 536 ( Ky. 1918 ); Jones v. Jones' Ex'rs, 198 Ky. 756 , 250 S.W. 92, 1923 Ky. LEXIS 559 ( Ky. 1923 ); Stiff's Ex'r v. Stiff, 217 Ky. 716 , 290 S.W. 718, 1927 Ky. LEXIS 77 ( Ky. 1927 ).

The advancement statute does not apply where there is no undevised estate. Sandidge v. Kentucky Trust Co., 402 S.W.2d 105, 1966 Ky. LEXIS 359 ( Ky. 1966 ).

3.Advancements.

Where a testator devised property to some of his children and deeded property to other children, and in each instance specified that the property so devised or deeded was all the devisees or grantees were to have out of his estate, and then died intestate as to a part of his estate, the devisees or grantees were charged with advancements to the extent of the property devised or deeded and were entitled to share with the other children in the distribution of the intestate property. Phillups v. Phillups, 93 Ky. 498 , 20 S.W. 541, 14 Ky. L. Rptr. 493 , 1892 Ky. LEXIS 127 ( Ky. 1892 ) (decided under prior law).

In cases of partial intestacy an heir, who is a devisee in the will, is charged with an advancement of the value of the devise in distributing the intestate property. Walters v. Neafus, 136 Ky. 756 , 125 S.W. 167, 1910 Ky. LEXIS 539 ( Ky. 1910 ).

An advancement is made with the intention that it shall be charged to the donee in the distribution of the donor’s estate. Brewer's Adm'r v. Brewer, 181 Ky. 400 , 205 S.W. 393, 1918 Ky. LEXIS 536 ( Ky. 1918 ).

An ordinary advancement does not create a relationship of debtor and creditor and no recovery can be had for the excess of the advancement over the donee’s distributable share of the estate of the donor. McPherson v. Black, 215 Ky. 92 , 284 S.W. 413, 1926 Ky. LEXIS 655 ( Ky. 1926 ).

Where father deeded land to his children, reciting in each deed that it was an advancement and that each should repay sufficient to make all equal, it was an advancement to the extent of a child’s share and each grantee was under a legal obligation to pay back a sum to make the children share the estate of the decedent equally. McPherson v. Black, 215 Ky. 92 , 284 S.W. 413, 1926 Ky. LEXIS 655 ( Ky. 1926 ).

Where unequal devises and bequests are made in testator’s will and a large part of his estate is not covered by the will, the unequal devises or bequests are treated as advancements in the settlement of his estate. Nolan's Ex'rs v. Nolan, 220 Ky. 613 , 295 S.W. 893, 1927 Ky. LEXIS 580 ( Ky. 1927 ).

Section (1) and section (2) must be read together, and section (2) is confined to advancements defined in section (1). Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

Advancement, under this section, is a gift from a parent to a child, or by a grandparent to a grandchild. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

An advancement is an irrevocable gift, not required by law, made by a parent, during his lifetime, to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of his portion of the donor’s estate that the donee would be entitled to on the death of the donor intestate. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

An advancement is a gift made with the intention that it shall be charged to the donee in the distribution of the donor’s estate. Chism v. Chism, 296 Ky. 73 , 176 S.W.2d 101, 1943 Ky. LEXIS 101 ( Ky. 1943 ).

If a parent gives a child, or certain of his children a part only of his estate, and dies intestate as to the remainder, the law will take hold of the undisposed part and apply a sufficient amount of it to equalize the others with the favored ones, or to equalize them as far as may be done with the undisposed part of the estate. Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ). See McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ); Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ); Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

4.— Payment for Services.

The value of services rendered to an adult, incompetent child by his parent cannot be charged as an advancement to the child in the settlement of the estate of the parent. Crain v. Mallone, 130 Ky. 125 , 113 S.W. 67, 1908 Ky. LEXIS 250 ( Ky. 1908 ).

Where a daughter and two sons lived with their mother and the sons farmed the mother’s property and the daughter performed services about the household until she married at age 33, ten years before her mother’s death, and the mother gave her about $75 worth of personal property and conveyed land worth about $4,500 to the sons, the court properly found that the transfer of land was an advancement, although the deed recited consideration which the sons contended paid through the performance of services, and found that the daughter was entitled to $1,500 to offset the advancement. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Where a parent conveys land to a child, the consideration being that the child should care for the parent, and the child performs by taking care of the parent and the value of the property given is not greatly in excess of the value of the care given, the deed is supported by a valuable consideration and the gift is not an advancement. Day v. Grubbs, 235 Ky. 741 , 32 S.W.2d 327, 1930 Ky. LEXIS 457 ( Ky. 1930 ).

Conveyance of realty, constituting all of grantor’s property, in consideration of love and affection to certain children who had supported grantor and his predeceased wife for many years must be treated under statute as an “advancement” upon the death of grantor intestate as to property bequeathed to grantor after conveyance, in absence of any contract for support of grantor by grantees. Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ). See McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ); Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ); Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

The fact that services have been rendered which might have answered as consideration for a conveyance by an ancestor to a descendant is not sufficient to avoid treatment of the conveyance as an advancement, nor does the fact that the ancestor desired to make the gift because of such services. Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ).

In order for a transfer to be in payment for services rather than an advancement, the fact that services have been performed which could answer as consideration is alone not sufficient, but the parties must have also intended at the time of the transfer that it was in consideration of such services. Thomas v. Thomas, 398 S.W.2d 231, 1965 Ky. LEXIS 40 ( Ky. 1965 ).

5.— Transfer of Property.

Where a deed recited that consideration was paid for the transfer, the person asserting that it was an advancement has the burden of proving that the transfer was not for valuable consideration, but he is not required to allege that the recitation of consideration was fraud or a mistake. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Where a parent deeded land to her children for a recited consideration but no money was paid by the children to the parent, the consideration being work and labor of the children in caring for the parent, the deed was an advancement and was chargeable against the children in settling the estate of the deceased parent. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

If the consideration for the transfer is not sufficient to indicate that a sale was contemplated, the transaction is an advancement. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

A recited consideration may be shown to be fictitious without an allegation of fraud or mistake. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

A transfer is not a sale merely because it is denominated such. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

It is not necessary that consideration be equal to the price which would be charged a stranger, since allowance may be made for natural affection. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

The undertaking of grantees to pay grantors, who were grantees’ parents, during grantors’ lives, one-third of what grantees “shall make on said land” and to pay taxes, was not sufficient consideration to support a sale as distinguished from an advancement. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

A grantor cannot convert an advancement into something else merely by reciting that the transfer is not an advancement. Thomas v. Thomas, 398 S.W.2d 231, 1965 Ky. LEXIS 40 ( Ky. 1965 ).

In order to avoid this section a transfer must be a sale rather than a gift, so that, where a mother transferred realty to her daughters in appreciation, rather than in consideration, of their past services in caring for her and there was no computation of the value of such services and no demand for payment, the transfer was an advancement. Thomas v. Thomas, 398 S.W.2d 231, 1965 Ky. LEXIS 40 ( Ky. 1965 ).

6.— Gifts.

Where there is a gift by an ancestor to a descendant, the gift is treated as an advancement even though the ancestor intended that it not be so treated. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ). See Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ).

Where a parent and a child agree that a gift by the parent to a third party will be treated as an advancement to the child, such gift is an advancement to the child. Weddle v. Waddle's Adm'r, 261 Ky. 208 , 87 S.W.2d 383, 1935 Ky. LEXIS 628 ( Ky. 1935 ).

The law of advancements has never been applied to gifts made by a decedent to his wife in this lifetime. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

7.— — Given to In-laws.

Gifts to the husband of the daughter will be an advancement to the daughter if the sole consideration is the marriage relation between the daughter and her husband. Such gifts will be presumed advancements against the children of the daughter. But if such gifts are made after the death of the daughter they will not be considered advancements unless pursuant to a parol promise made during her lifetime. Stevenson v. Martin, 74 Ky. 485 , 1875 Ky. LEXIS 41 ( Ky. 1875 ) (decided under prior law). See Barber v. Taylor's Heirs, 39 Ky. 84 , 1839 Ky. LEXIS 89 ( Ky. 1839 ) (decided under prior law).

8.— — Given to Child.

A son who received a sum of money from his father, and signed a receipt showing that he accepted the sum as his “full proportion” of his father’s estate, was entitled to nothing else therefrom. Cushing v. Cushing, 70 Ky. 259 , 1870 Ky. LEXIS 49 ( Ky. 1870 ) (decided under prior law).

In determining whether a gift by the father to the child comes within the exception set out in this section, the intention of the father in making the gift will not govern, but the court will be governed by the character and value of the ancestor’s estate, the sum of money given the children, and the purposes for which it is to be applied. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

The gift of a reasonable sum of money by the parent to the child for education, amusement, health, travel, or temporary enjoyment is not an advancement to the child, but a gift without any view to a portion or settlement in life, under the exception in this section. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

An advancement made by a parent to a child will not be considered a debt owed the parent by the child. Edwards v. Livesay, 203 Ky. 53 , 261 S.W. 839, 1924 Ky. LEXIS 839 ( Ky. 1924 ).

Money given to a child “to even up with the land” which decedent gave his other children was an advancement. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

Gifts of money and personalty at the time children marry are not advancements where they were not made with a view to a portion or settlement in life, especially where each child received approximately equal amounts. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

9.— Use of Land.

A daughter who lives upon her father’s land and pays no rent therefor is chargeable with the reasonable value of the use of the land as an advancement. Hamilton v. Moore, 70 S.W. 402, 24 Ky. L. Rptr. 982 (1902). See Garrott v. Rives, 80 S.W. 519, 25 Ky. L. Rptr. 2165 , 26 Ky. L. Rptr. 10 (Ky. Ct. App. 1904).

Where children lived with widowed mother on her land which they farmed, at the same time caring for the widowed mother, the children were not to be charged with rents on the farm as advancements. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Although the rental value of property may be treated as an advancement, where decedent’s sons were allowed to use her land and they substantially improved and built up the land by their skill and labor thus benefitting the other heirs, it was not proper to charge them with the rental value of the land as an advancement. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Where an intestate allowed his daughter and her husband to occupy and use certain land as their own for several years, acquiesced to the daughter and son-in-law treating the property as their own, but never made a deed to the daughter, the trial court properly refused to charge the daughter for the rental value of the land, which would have equalled about twice the value of the land at the time the intestate allowed the daughter to occupy it, refused to treat the land itself as an advancement to the daughter, and ordered the land distributed with the rest of the estate. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

Where father made a parol gift of land to his daughter and she occupied the land as her own for several years prior to father’s death, but no deed conveying title was executed, she was not chargeable with advancements as to rents for the period she occupied and used the land. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

10.— Support and Education of Child.

No charge for an advancement shall be raised against a distributee for money furnished to him or paid by his parent for his education in the ordinary discharge of the natural duty of the parent to provide for his child’s comfort and education. Brannock v. Hamilton, 72 Ky. 446 , 1872 Ky. LEXIS 74 ( Ky. 1872 ) (decided under prior law).

Money furnished to a child in order for him to obtain a professional education was chargeable against him as an advancement in the settlement of the estate of his father where the father kept a book account of the amount so furnished indicating that he intended to charge the son for the money so furnished. Hill's Guardian v. Hill, 122 Ky. 681 , 92 S.W. 924, 29 Ky. L. Rptr. 201 , 1906 Ky. LEXIS 88 ( Ky. 1906 ).

A father voluntarily aiding a son by paying his attorney’s fees and giving him a small sum of money does not create a debt nor an advancement under this section. Chism v. Chism, 296 Ky. 73 , 176 S.W.2d 101, 1943 Ky. LEXIS 101 ( Ky. 1943 ).

In the absence of a contrary intent, payment of a child’s hospital bill is not an advancement to the child. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

11.— Insurance.

Whether treated as a gift or in the light of a testamentary assignment, the amount of the insurance policy received by each beneficiary after the death of the intestate will constitute the sum to be charged as an advancement. Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

Where an ancestor revocably designates a descendant as the beneficiary of a policy of insurance on the ancestor’s life, the proceeds of the policy received by the descendant upon the death of the ancestor is an advancement. Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

12.— Value of Property.

Where father had conveyance made to his sons in 1823, reserving a life interest for himself, and in 1842 entered into an agreement in which he relinquished his life interest, and in 1849 made a deed conveying the land, it was held that the value should be fixed as of 1842. Hook v. Hook, 42 Ky. 526 (1853) (decided under prior law). See Stevenson v. Martin, 74 Ky. 485 , 1875 Ky. LEXIS 41 ( Ky. 1875 ) (decided under prior law).

Where the testator required his sons to pay $4,000 for land which he devised to them, and it was evident that the testator valued the land at more than the sum paid and intended an advancement in the amount of the difference between $4,000 and the sum paid, and the value of the land and that sum should be ascertained and charged against the sons as an advancement. Renaker v. Lafferty's Adm'r, 68 Ky. 88 , 1868 Ky. LEXIS 231 ( Ky. 1868 ) (decided under prior law).

Where the testator dies partially intestate and in his will places a value upon the property devised to the children the value so placed is not controlling in fixing the amount of the advancement. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

Where the father makes a parol gift of land to his child and then devises the land to his child in his will, the value of the land is to be ascertained as of the date of the death of the father, at which time the gift was made perfect. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

Where a parent died partially intestate, and in his will devised realty to the child for life and at his death to his children, and in the event the child died without living issue to the father’s heirs-at-law, in distributing the intestate property such a child was chargeable with the value of a fee simple estate in the devised property. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

Where encumbered land is conveyed by a parent to his child the value of the land is its value less the encumbrance. Garrott v. Rives, 80 S.W. 519, 25 Ky. L. Rptr. 2165 , 26 Ky. L. Rptr. 10 (Ky. Ct. App. 1904).

Where a father settled his children on various tracts of land telling them that he was giving the land to them, and years later executed a deed to each child for the land on which the child was settled, the amount of advancement to each child was the value of the land at the time the deeds were executed, without regard to rents and improvements. Ward v. Johnson, 124 Ky. 1 , 97 S.W. 1110, 30 Ky. L. Rptr. 240 , 30 Ky. L. Rptr. 417 , 1906 Ky. LEXIS 229 (Ky. Ct. App. 1906). See Edwards v. Livesay, 203 Ky. 53 , 261 S.W. 839, 1924 Ky. LEXIS 839 ( Ky. 1 924 ).

The value of advancements is to be estimated at the time made, except when they are to be enjoyed at a future time. In the latter event, the value is to be estimated at the time at which the gift is made complete by possession and enjoyment of the property by the child. Farley v. Stacey, 177 Ky. 109 , 197 S.W. 636, 1917 Ky. LEXIS 562 ( Ky. 1917 ).

The value of property advanced is fixed as of the day the advancement is made, which in the case of an advancement of the use and occupation of land would be the time at which such use and occupation was enjoyed. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

Where life estate is reserved in donor of advancement, value of advancement is fixed as of date of death of donor and not as of date of conveyance. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Where advancement contained charge on land in favor of donor and his wife for their lives, the value of the advancement was determined as of date of donor’s death by deducting value of charge on land remaining in favor of wife, as against contention that valuation should have been postponed until extinguishment of charge by death of wife. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Where conveyance is to child for life with remainder to his descendants, value of life estate of child who is donee is ignored and the value of the fee as of death of donor is charged as an advancement against the child. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Where life estate is reserved for benefit of person other than donor, value of life estate continuing after death of donor is ascertained as of date of death of donor and deducted from the value of the fee. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Advancements are chargeable to the distributee at their value at the time the advancements were made. Damron v. Bartley, 302 Ky. 83 , 194 S.W.2d 73, 1946 Ky. LEXIS 613 ( Ky. 1946 ).

Where, as an advancement, a farm is given with the reservation of a percentage of the products therefrom for the lives of the decedent and his wife, the amount of the advancement is the value of the farm on the date of gift less the value on that date of the retained interest in farm products, which could be determined by several proper methods. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

Where, as an advancement, a farm was given, subject to life estates of the decedent and his wife, the amount of the advancement was the value of the farm at the decedent’s death less the value of the surviving widow’s life estate at that time. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

13.— Debts.

Debts owed by the heir to the decedent are not advancements. The heir is entitled to his distributable share of the estate without regard to debts owed by him to the estate unless such debts are pleaded as an offset by the personal representative of the decedent. Thompson v. Myers, 95 Ky. 597 , 26 S.W. 1014, 16 Ky. L. Rptr. 139 , 1894 Ky. LEXIS 73 ( Ky. 1894 ).

An advancement to a child operates to satisfy a debt owed by the parent to the child where the amount of the advancement is equal to or greater than the amount of the debt. Brooks' Assignee v. Summers, 100 Ky. 620 , 38 S.W. 1047, 18 Ky. L. Rptr. 1026 , 1897 Ky. LEXIS 31 ( Ky. 1897 ).

The mere fact that the father took a note from his daughter in the amount of money given her does not prevent the gift from being chargeable as an advancement to her in the settlement of his intestate estate. Frye v. Avritt, 68 S.W. 420, 24 Ky. L. Rptr. 183 , 1902 Ky. LEXIS 349 (Ky. Ct. App. 1902).

If a debtor-creditor relationship exists between the parent and child it cannot be considered an advancement to the child in the settlement of the estate of the deceased parent. Luscher v. Security Trust Co., 178 Ky. 593 , 199 S.W. 613, 1918 Ky. LEXIS 425 ( Ky. 1918 ) ( Ky. 1918 ).

If various children receive advancements of different amounts those who received the lesser amounts are to be made equal to the others before any further distribution of the estate is made. Edwards v. Livesay, 203 Ky. 53 , 261 S.W. 839, 1924 Ky. LEXIS 839 ( Ky. 1924 ).

Where the son owes the father a debt they may contract and agree that the debt should be treated as an advancement, and it will be so treated in the settlement of the estate of the deceased father. Farmers' Exchange Bank v. Moffett, 256 Ky. 160 , 75 S.W.2d 1063, 1934 Ky. LEXIS 379 ( Ky. 1934 ).

Father and son cannot make what the law deems an advancement into a debt so that it will be treated as a debt in a settlement of the father’s estate. Farmers' Exchange Bank v. Moffett, 256 Ky. 160 , 75 S.W.2d 1063, 1934 Ky. LEXIS 379 ( Ky. 1934 ).

Where the father loaned the son a sum of money taking a note therefor which note stipulated that if it was not paid during the father’s lifetime it should be deducted from the son’s share of the father’s estate, it was an advancement to the son. Veatch's Adm'r v. Loverett, 265 Ky. 532 , 97 S.W.2d 47, 1936 Ky. LEXIS 526 ( Ky. 1936 ). See Loverett v. Veatch, 268 Ky. 797 , 105 S.W.2d 1052, 1937 Ky. LEXIS 534 ( Ky. 1937 ).

14.— Compromised Claims.

Sum of money received by son in compromise of a law suit pending between him and his father, under a contract to the effect that the son released all claims upon the estate of the father, was charged as an advancement to the son, and the contract by which the son attempted to release all claims against the estate of the father was unenforceable. Elliott v. Leslie, 124 Ky. 553 , 99 S.W. 619, 30 Ky. L. Rptr. 743 , 1907 Ky. LEXIS 212 ( Ky. 1907 ).

15.— Interest.

Provision of will charging share of one devisee with advancements to him did not include interest on the amount advanced. McGinnis v. Moore, 278 Ky. 587 , 129 S.W.2d 141, 1939 Ky. LEXIS 473 ( Ky. 1939 ).

16.— Intentions of Donor.

The intention of the donor in making a gift cannot affect the question of advancement, but it may be shown that the parent intended to make a gift. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

A parent could not by a mere declaration make that an advancement which is not such by law, or prevent that from being an advancement which is made so by law. Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ).

If a parent conveys land to his sons, the consideration being love and affection, and the deed stipulates that the conveyance is not an advancement but is an absolute gift to the sons, it is an advancement nevertheless where the father dies intestate. Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ).

Although father, in conveying land to his daughter, recited that conveyance was in full satisfaction of all claims and future interests of daughter in his estate, and it was so accepted by daughter, the transaction amounted only to an advancement. Pendley v. Lee, 233 Ky. 372 , 25 S.W.2d 1030, 1930 Ky. LEXIS 571 ( Ky. 1930 ).

In determining whether a conveyance is an advancement, the intention of the decedent is not considered. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Calling a payment an advancement will not make it one; a donor cannot make that an advancement which is not made as by law. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

In passing upon the competency of declarations made by an ancestor as to the intention with which a gift was made, declarations of the donor prior to the transfer or contemporaneous with it are competent, but subsequent declarations are inadmissible. Chism v. Chism, 296 Ky. 73 , 176 S.W.2d 101, 1943 Ky. LEXIS 101 ( Ky. 1943 ).

17.— Person Charged with Advancements.

Gifts to grandchildren during the lifetime of the parents are not advancements to the parents. Stevenson v. Martin, 74 Ky. 485 , 1875 Ky. LEXIS 41 ( Ky. 1875 ) (decided under prior law).

If an advancement has been made to a daughter, it is chargeable to the heirs of the daughter in the settlement of the intestate estate of the father. Frye v. Avritt, 68 S.W. 420, 24 Ky. L. Rptr. 183 , 1902 Ky. LEXIS 349 (Ky. Ct. App. 1902).

Where the father indicates a desire to deed land to his son and thereby make an advancement to him, and the son, fearing attachment from his creditors, has the father convey the land to his son, who is the grandson of the father, it is an advancement to the son and chargeable against him. Hamilton v. Moore, 70 S.W. 402, 24 Ky. L. Rptr. 982 (1902).

Advancement to decedent’s son was chargeable to son’s children, where son died before decedent. Heath v. Heath, 222 Ky. 123 , 300 S.W. 343, 1927 Ky. LEXIS 874 ( Ky. 1927 ).

A gift to a grandchild while his parent is living is not chargeable to the parent as an advancement in the settlement of the estate of the grandparent, but if the parent consents to the gift to his child, on the parent’s account, it is properly chargeable to the parent. Weddle v. Waddle's Adm'r, 261 Ky. 208 , 87 S.W.2d 383, 1935 Ky. LEXIS 628 ( Ky. 1935 ).

Cited:

Faulkner v. Tucker, 83 S.W. 579, 26 Ky. L. Rptr. 1130 (1904).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

391.150. Contribution.

Contributions shall take place between heirs and distributees on the same principles as between co-obligors.

History. 2080.

NOTES TO DECISIONS

1.Debts.

Where two persons became the joint purchasers of a farm and gave their joint note for $3,000, secured by a lien on the farm, and one of them died and his executor paid $1,500 on the note out of the decedent’s estate, then the other party died and in her will devised her land to her daughter, the land so devised was subject to the lien to the extent of one-half of the note and the devisee must contribute this amount to its payment. Penick v. Tribble, 160 Ky. 188 , 169 S.W. 607, 1914 Ky. LEXIS 417 ( Ky. 1914 ).

2.Lien for Contribution.

Where the personal property of the decedent was insufficient to pay debts and the heirs agreed to contribute an amount sufficient to pay the debts, and there was an infant daughter for whom money was borrowed from a bank by her guardian to pay her share, and the land was divided among the heirs, the adult heirs had a lien against the infant’s share to force her contribution to the payment of the debts. Smith's Adm'rs v. Catlin, 63 S.W. 473, 23 Ky. L. Rptr. 381 (1901).

3.Repudiation of Award.

An arbitration award was repudiated by one of the infant heirs when she became of age and resulted in one of the heirs losing one-half of the land allotted to him. This heir was entitled to recover from the other heirs and equalize the loss. Brownlee v. Bunnell, 103 S.W. 284, 31 Ky. L. Rptr. 669 (1907).

4.Ratable Charge for Indebtedness.

Where a testator makes specific devisees in his will and there is not sufficient personalty to pay the debts, the specific devises must be ratably charged, according to their value, with the payment of such remaining indebtedness, regardless of the instructions of the testator in his will. Young v. Madison's Ex'r, 252 Ky. 99 , 66 S.W.2d 1, 1933 Ky. LEXIS 987 ( Ky. 1933 ).

Research References and Practice Aids

Cross-References.

Contribution by devisees, KRS 394.420 to 394.490 .

Contributions generally, KRS Ch. 412.

391.160. Authority of life tenant to invade corpus.

  1. If
    1. A devise, bequest, or conveyance of real or personal property is made by written instrument free of any trust; and
    2. By the express terms of the instrument or by rule of law the devise, bequest or conveyance is made to a life tenant with power to consume principal or invade corpus, with the remainder to another upon the death of the life tenant; and
    3. The instrument does not expressly state the purpose for or the extent to which the life tenant may consume principal or invade corpus, then the provisions of subsection (2) shall apply.
  2. The life tenant’s power to consume principal or invade corpus shall be limited to such consumption or invasion as shall be necessary for his health, education (including college and professional education), and support in his accustomed manner of living.
  3. If
    1. A devise, bequest, or conveyance of real or personal property is made in trust by written instrument; and
    2. By the express terms of the trust instrument or by rule of law the devise, bequest or conveyance is made for the benefit of a tenant for life with power in the trustee to consume principal or invade corpus for the benefit of the life tenant, with remainder to another upon the death of the life tenant; and
    3. The instrument does not expressly state the purpose for or the extent to which the trustee may consume principal or invade corpus for the benefit of the life tenant, then the provisions of subsection (4) shall apply.
  4. The trustee’s power to consume principal or invade corpus for the benefit of the life tenant shall be limited to such consumption or invasion as shall be necessary for his health, education (including college and professional education), and support in his accustomed manner of living.

History. Enact. Acts 1974, ch. 299, § 12.

391.170. Commercial rights to use of names and likenesses of public figures.

  1. The General Assembly recognizes that a person has property rights in his name and likeness which are entitled to protection from commercial exploitation. The General Assembly further recognizes that although the traditional right of privacy terminates upon death of the person asserting it, the right of publicity, which is a right of protection from appropriation of some element of an individual’s personality for commercial exploitation, does not terminate upon death.
  2. The name or likeness of a person who is a public figure shall not be used for commercial profit for a period of fifty (50) years from the date of his death without the written consent of the executor or administrator of his estate.

History. Enact. Acts 1984, ch. 263, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Although it may not be necessary to have attained national celebrity status in order to come within the purview of this section, it is necessary that one’s name and likeness have significant commercial value. Montgomery v. John Michael Montgomery, 1999 Ky. App. LEXIS 146 (Ky. Ct. App. Nov. 19, 1999).

Right of publicity claim against a decedent’s images in a music video was inapplicable because the fact that a person’s likeness was used in a constitutionally-protected work, a music video, to create or enhance profits did not make the use actionable, nor did the use of the likeness in an advertisement or promotion for the underlying work infringe upon a person’s right of publicity. Montgomery v. Montgomery, 60 S.W.3d 524, 2001 Ky. LEXIS 205 ( Ky. 2001 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Invasion of Privacy Torts, § 128.00.

Disposition of Community Property Rights at Death

391.210. Application.

KRS 391.210 to 391.260 applies to the disposition at death of the following property acquired by a married person:

  1. All personal property, wherever situated:
    1. Which was acquired as or became, and remained, community property under the laws of another jurisdiction; or
    2. All or the proportionate part of that property acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or
    3. Traceable to that community property;
  2. All or the proportionate part of any real property situated in this state which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as or which became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property.

History. Enact. Acts 1974, ch. 328, § 1(1).

Research References and Practice Aids

Comparative Legislation.

Uniform Disposition of Community Property Rights at Death Act.

Va. Code 1950. §§ 64-1-197 — 64-1-206.

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.215. Rebuttable presumptions.

In determining whether KRS 391.210 to 391.260 applies to specific property the following rebuttable presumptions apply:

  1. Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as or to have become, and remained, property to which KRS 391.210 to 391.260 applies; and
  2. Real property situated in this Commonwealth and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which KRS 391.210 to 391.260 applies.

History. Enact. Acts 1974, ch. 328, § 1(2).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.220. Disposition upon death.

Upon death of a married person, one-half (1/2) of the property to which KRS 391.210 to 391.260 applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this Commonwealth. One-half (1/2) of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this Commonwealth. With respect to property to which KRS 391.210 to 391.260 applies, the one-half (1/2) of the property which is the property of the decedent is not subject to the surviving spouse’s right to elect against the will.

History. Enact. Acts 1974, ch. 328, § 1(3).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.225. Perfection of title of surviving spouse.

If the title to any property to which KRS 391.210 to 391.260 applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the probate court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the probate court. Neither the personal representative nor the court in which the decedent’s estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which KRS 391.210 to 391.260 applies, unless a written demand is made by the surviving spouse or the spouse’s successor in interest.

History. Enact. Acts 1974, ch. 328, § 1(4).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.230. Perfection of title of personal representative, heir, or devisee.

If the title to any property to which KRS 391.210 to 391.260 applies is held by the surviving spouse at the time of the decedent’s death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which KRS 391.210 to 391.260 applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.

History. Enact. Acts 1974, ch. 328, § 1(5).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.235. Purchaser for value or lender.

If a surviving spouse has apparent title to property to which KRS 391.210 to 391.260 applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent. If a personal representative or an heir or devisee of the decedent has apparent title to property to which KRS 391.210 to 391.260 applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly. The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.

History. Enact. Acts 1974, ch. 328, § 1(6).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.240. Creditors’ rights.

KRS 391.210 to 391.260 does not affect rights of creditors with respect to property to which KRS 391.210 to 391.260 applies.

History. Enact. Acts 1974, ch. 328, § 1(7).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.245. Acts of married persons.

KRS 391.210 to 391.260 does not prevent married persons from severing or altering their interests in property to which KRS 391.210 to 391.260 applies.

History. Enact. Acts 1974, ch. 328, § 1(8).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.250. Limitations on testamentary disposition.

KRS 391.210 to 391.260 does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

History. Enact. Acts 1974, ch. 328, § 1(9).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.255. Uniformity of application and construction.

KRS 391.210 to 391.260 shall be so applied and construed as to effectuate the general purpose to make uniform the law with respect to the subject of KRS 391.210 to 391.260 among those states which enact it.

History. Enact. Acts 1974, ch. 328, § 1(10).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.260. Title.

KRS 391.210 to 391.260 may be cited as the Uniform Disposition of Community Property Rights at Death Act.

History. Enact. Acts 1974, ch. 328, § 1(11).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

Multiple Party Accounts

391.300. Definitions.

As used in KRS 391.305 to 391.360 , unless the context otherwise requires:

  1. “Account” means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement;
  2. “Beneficiary” means a person named in a trust account as one for whom a party to the account is named as trustee;
  3. “Financial institution” means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions;
  4. “Joint account” means an account payable on request to one (1) or more of two (2) or more parties whether or not mention is made of any right of survivorship;
  5. A “multiple-party account” is any of the following types of account: (i) a joint account, (ii) a P.O.D. account, or (iii) a trust account. It does not include accounts established for deposit of funds of a partnership, joint venture, or other association for business purposes, or accounts controlled by one (1) or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization or a regular fiduciary or trust account where the relationship is established other than by deposit agreement;
  6. “Net contribution” of a party to a joint account as of any given time is the sum of all deposits thereto made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes, in addition, any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question;
  7. “Party” means a person who, by the terms of the account, has subject to request, a present right, exercisable alone or jointly with one (1) or more other parties, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to him by reason of his surviving the original payee or trustee. Unless the context otherwise requires, it includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party. It also includes a person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless he has a present right of withdrawal;
  8. “Payment” of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party and any set-off, or reduction or other disposition of all or part of an account pursuant to a pledge;
  9. “Proof of death” includes a death certificate or record or report which is prima facie proof of death;
  10. “P.O.D. account” means an account payable on request to one (1) person during lifetime and on his death to one (1) or more P.O.D. payees, or to one (1) or more persons during their lifetimes and on the death of all of them to one (1) or more P.O.D. payees;
  11. “P.O.D. payee” means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one (1) or more persons;
  12. “Request” means a proper request for withdrawal, or a check or order for payment, which complies with all conditions of the account, including special requirements concerning the necessary signature or number of signatures of the parties to the account which may be required for a proper request and regulations of the financial institution; but if the financial institution conditions withdrawal or payment on advance notice, for purposes of KRS 391.305 to 391.360 , the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal;
  13. “Sums on deposit” means the balance payable on a multiple-party account including interest, dividends, and in addition any deposit life insurance proceeds added to the account by reason of the death of a party;
  14. “Trust account” means an account in the name of one (1) or more parties as trustee for one (1) or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A trust account does not include a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account, or a fiduciary account arising from a fiduciary relation such as attorney-client;
  15. “Withdrawal” includes payment to a third person pursuant to check or other directive of a party;
  16. A financial institution “receives” an order or notice under KRS 391.305 to 391.360 when it is duly delivered at the place of business at which the multiple-party account was originally established or at any other place held out by the financial institution as the place for receipt of such communication.

History. Enact. Acts 1976, ch. 218, § 26.

NOTES TO DECISIONS

1.Account.

A safe deposit box is not an “account” or “other like arrangement” pursuant to subsection (1) of this section entitling the surviving party to the balance. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

2.Brokerage Accounts.

Brokerage accounts are not governed by the Multiple Party Account provisions of KRS Chapter 391, KRS 391.300 - 391.355 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Brokerage firms are not sufficiently bank-like to be deemed “financial institutions,” and brokerage accounts, or securities accounts, do not fit comfortably within the concept of a “deposit of funds” and thus do not qualify as “accounts” for purposes of KRS 391.315 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Pulliam v. Pulliam, 738 S.W.2d 846, 1987 Ky. App. LEXIS 588 (Ky. Ct. App. 1987).

Opinions of Attorney General.

Payments of a jointly owned bank account to the joint survivor, disbursement of remaining funds in a P.O.D. account to the surviving payee, or disbursement of remaining funds in a trust account to beneficiaries can only be made upon a written waiver from the Department of Revenue. OAG 76-501 .

Research References and Practice Aids

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

391.305. Ownership as between parties and others — Protection of financial institutions.

The provisions of KRS 391.310 to 391.320 concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. The provisions of KRS 391.335 to 391.360 govern the liability of financial institutions who make payments pursuant thereto, and their set-off rights.

History. Enact. Acts 1976, ch. 218, § 27.

NOTES TO DECISIONS

1.Ownership of Safe Deposit Box.

A typical contract for the rental of a safe deposit box shall govern only the access to the box and not ownership of the contents unless there is an express agreement otherwise and the law so allows. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

391.310. Ownership during lifetime.

  1. A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
  2. A P.O.D. account belongs to the original payee during his lifetime and not to the P.O.D. payee or payees; if two (2) or more parties are named as original payees, during their lifetimes rights as between them are governed by subsection (1) of this section.
  3. Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime, and if two (2) or more parties are named as trustee on the account, during their lifetimes beneficial rights as between them are governed by subsection (1) of this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.

History. Enact. Acts 1976, ch. 218, § 28.

NOTES TO DECISIONS

1.Ownership.

A party to a joint account may, for attachment and execution purposes, initially be presumed to own the entire joint account; however, upon notice and objection, the debtor or any third-party account tenant may rebut that presumption by proof of separate net contributions to the account and an intention that the non-contributor’s use of the other’s contributions be limited. Brown v. Commonwealth, 40 S.W.3d 873, 1999 Ky. App. LEXIS 126 (Ky. Ct. App. 1999).

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Barnett v. Cmty. Trust Bank, Inc., — S.W.3d —, 2009 Ky. App. LEXIS 252 (Ky. Ct. App. 2009).

391.315. Right of survivorship.

    1. Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties to the account as against the estate of the decedent unless there is clear and convincing written evidence of a different intention at the time the account is created. If there are two or more surviving parties their respective ownerships during lifetime shall be in proportion to their previous ownership interests under KRS 391.310 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties. (1) (a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties to the account as against the estate of the decedent unless there is clear and convincing written evidence of a different intention at the time the account is created. If there are two or more surviving parties their respective ownerships during lifetime shall be in proportion to their previous ownership interests under KRS 391.310 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.
    2. In transferring or releasing joint account funds subsequent to the date of death of one (1) or more of the named joint account holders, a financial institution or other appropriate third party may rely conclusively on the form and terms of the account to pay in accordance with paragraph (a) of this subsection. The transfer or release of those joint account funds has no bearing on the actual rights of ownership of the funds as between the surviving party or parties to the account and the dower or curtesy interest of any surviving spouse. The transfer or release by a financial institution or third party in accordance with this section shall constitute a full release and discharge of the financial institution or third party from all claims relating to ownership.
  1. If the account is a P.O.D. account, on death of the original payee or of the survivor of two or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the original payee; if two or more P.O.D. payees survive, there is no right of survivorship in event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
  2. If the account is a trust account, on death of the trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a contrary intent; if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
  3. In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.
  4. A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a trust account, or a P.O.D. payee designation, cannot be changed by will.

History. Enact. Acts 1976, ch. 218, § 29; 1998, ch. 196, § 24, effective July 15, 1998.

NOTES TO DECISIONS

1.Provisions of KRS 392.020.

No statute has expressly repealed the provisions of KRS 392.020 and the Supreme Court does not find any conflict between KRS 392.020 and this section such that this section can be said by implication to repeal KRS 392.020. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

2.Joint Account.

It is true that this section provides that funds deposited into a joint account belong to the survivor as against the estate of the decedent upon the death of the other party to the account, but this is subject to a statutory limitation that the funds do not become the property of the survivor if there is clear and convincing evidence of a different intention at the time the account was created; there is also another limitation, necessarily implied in law, that the survivor of parties to a joint account cannot become the owner of the funds in the account upon the death of the other party if the party who deposited the funds was not legally entitled to dispose of them in such a manner. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

Bank rules for joint bank accounts provided that the accounts were with right of survivorship, and thus there was no evidence to overcome the presumption in Ky. Rev. Stat. Ann. § 391.315(1)(a) that the account was a joint account with right of survivorship; consequently, the widow could legally close the account as the sole owner upon her husband’s death. Wheeler v. Layton, 617 S.W.3d 830, 2021 Ky. App. LEXIS 7 (Ky. Ct. App. 2021).

3.Dower Claims.

While this section is a perfectly appropriate statute to settle a dispute between the estate of a decedent and the surviving party to the joint account when there is no clear and convincing evidence of the intent of the parties at the time the account was opened, it is not an appropriate statute to accomplish a transfer of ownership of funds as to which the depositor into the account had no right of disposition; most certainly, a deposit into a joint account cannot defeat the right to recover the funds so deposited by one who has a legal claim of ownership thereof, such as a dower claim. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

4.Safe Deposit Box.

A safe deposit box is not an “account” or “other like arrangement” pursuant to KRS 391.300(1) entitling the surviving party to the balance. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

A typical contract for the rental of a safe deposit box shall govern only the access to the box and not ownership of the contents unless there is an express agreement otherwise and the law so allows. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

5.Certificates of Deposit.

Where certificates of deposit were payable in the alternative because of the inclusion of “or” on their faces and were thus negotiable, decedent who had possession of such certificates could demand and receive payment for them during her life and could pledge them as collateral for bank loans and that pledge continued as long as the loans remained unpaid and the pledgee bank retained possession; therefore when decedent defaulted on her loans, pledgee bank had a right superior to the alternative payee to liquidate the certificates as it would have had to dispose of any other type of collateral. Farmers Bank & Trust Co. v. Brazell, 902 S.W.2d 830, 1995 Ky. App. LEXIS 27 (Ky. Ct. App. 1995).

6.Brokerage Firms.

Brokerage firms are not sufficiently bank-like to be deemed “financial institutions,” and brokerage accounts, or securities accounts, do not fit comfortably within the concept of a “deposit of funds” and thus do not qualify as “accounts” for purposes of KRS 391.315 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Brokerage accounts are not governed by the Multiple Party Account provisions of KRS Chapter 391, KRS 391.300 - 391.355 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Barnett v. Cmty. Trust Bank, Inc., 2009 Ky. App. LEXIS 252 (Ky. Ct. App. Dec. 18, 2009); Keith v. Cross, 2021 Ky. App. LEXIS 115 (Ky. Ct. App. Nov. 5, 2021).

Opinions of Attorney General.

Payments of a jointly owned bank account to the joint survivor, disbursement of remaining funds in a P.O.D. account to the surviving payee, or disbursement of remaining funds in a trust account to beneficiaries can only be made upon a written waiver from the Department of Revenue. OAG 76-501 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside and Harman, Kentucky Taxation, 67 Ky. L.J. 739 (1978-79).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Personal Rights and Privileges Resulting from Marriage, § 12.6.

391.320. Effect of written notice to financial institution.

The provisions of KRS 391.315 as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written order from any party able to request present payment without the joinder of any other party given to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order must be signed by said party, received by the financial institution during the party’s lifetime, and not countermanded by other written order of the same party during his lifetime.

History. Enact. Acts 1976, ch. 218, § 30.

391.325. Accounts and transfers nontestamentary.

Any transfers resulting from the application of KRS 391.315 are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary.

History. Enact. Acts 1976, ch. 218, § 31.

NOTES TO DECISIONS

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985).

391.330. Payment on signature of one party.

Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request to any one (1) or more of the parties. A financial institution shall not be required to inquire as to the source of funds received for deposit to a multiple-party account, or to inquire as to the proposed application of any sum withdrawn from an account, for purposes of establishing net contributions.

History. Enact. Acts 1976, ch. 218, § 32.

NOTES TO DECISIONS

1.Negligence.

The bank was not negligent in failing to inquire of the joint owner if he had the certificates of deposit when the executrix of the other joint owner claimed the certificates were lost and requested that the joint owner’s name be deleted therefrom. Pulliam v. Pulliam, 738 S.W.2d 846, 1987 Ky. App. LEXIS 588 (Ky. Ct. App. 1987).

Summary judgment was improper in a joint depositor’s suit against a bank for negligence and breach of contract for wrongly removing the depositor’s name from a jointly-owned CD and then distributing the funds to another because the depositor’s evidence entitled the depositor to a day in court on the bank’s alleged breach of its duty of care; although banks had no legal duty under KRS 391.330 to inquire of or inform one joint depositor about actions taken by another joint owner, the general standard of care owed by banks presumed that bank employees would attempt to verify ownership of financial instruments prior to engaging in transactions involving those instruments. Barnett v. Cmty. Trust Bank, Inc., 2009 Ky. App. LEXIS 252 (Ky. Ct. App. Dec. 18, 2009).

391.335. Payment after death or disability.

Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proof of death is presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under KRS 391.315 .

History. Enact. Acts 1976, ch. 218, § 33.

Opinions of Attorney General.

Payments of a jointly owned bank account to the joint survivor, disbursement of remaining funds in a P.O.D. account to the surviving payee, or disbursement of remaining funds in a trust account to beneficiaries can only be made upon a written waiver from the Department of Revenue. OAG 76-501 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside and Harman, Kentucky Taxation, 67 Ky. L.J. 739 (1978-79).

391.340. Payment of P.O.D. account.

Any P.O.D. account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that the deceased original payee was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee.

History. Enact. Acts 1976, ch. 218, § 34.

391.345. Payment of trust account.

Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon his surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that the deceased trustee was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.

History. Enact. Acts 1976, ch. 218, § 35.

391.350. Discharge.

Payment made pursuant to KRS 391.330 to 391.345 discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees, or beneficiaries, or their successors. The protection here given does not extend to payments made after a financial institution has received written notice from any party to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, any other party to the account and the successor of any deceased party must concur in any demand for withdrawal if the financial institution is to be protected under this section. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided here. The protection here provided shall have no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts.

History. Enact. Acts 1976, ch. 218, § 36.

NOTES TO DECISIONS

1.Negligence.

Summary judgment was improper in a joint depositor’s suit against a bank for negligence and breach of contract for wrongly removing the depositor’s name from a jointly-owned CD and then distributing the funds to another because the depositor’s evidence entitled the depositor to a day in court on the bank’s alleged breach of its duty of care; although banks had no legal duty under KRS 391.330 to inquire of or inform one joint depositor about actions taken by another joint owner, the general standard of care owed by banks presumed that bank employees would attempt to verify ownership of financial instruments prior to engaging in transactions involving those instruments. Barnett v. Cmty. Trust Bank, Inc., 2009 Ky. App. LEXIS 252 (Ky. Ct. App. Dec. 18, 2009).

391.355. Set-off.

Without qualifying any common law or any other statutory right to set-off or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to set-off against the account in which the party has or had immediately before his death a present right of withdrawal without the joinder of any other party. The amount of the account subject to set-off is that proportion to which the debtor is, or was immediately before his death, beneficially entitled, and in the absence of actual knowledge of net contributions by the financial institution, to an equal share with all parties having present rights of withdrawal without the joinder of any other party.

History. Enact. Acts 1976, ch. 218, § 37.

Provisions Relating to Effect of Death

391.360. Written provisions for nonprobate transfer on death.

  1. A written provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. These written provisions shall include, but not be limited to, written provisions which provide that:
    1. Money or other benefits due to, controlled, or owned by a decedent before death shall be paid after the decedent’s death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed before, at the same time, or after the instrument is executed;
    2. Money due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promissor before payment or demand; or
    3. Any property, controlled by or owned by the decedent before death, which is the subject of the instrument shall pass to a person the decedent designates either in the instrument or in a separate writing, including a will, executed before, at the same time, or after the instrument is executed.
  2. This section shall not limit the rights of creditors under other laws of this state.

History. Enact. Acts 1976, ch. 218, § 38; 1998, ch. 415, § 11, effective July 15, 1998.

NOTES TO DECISIONS

1.Change of Beneficiaries.

Summary judgment for the designated beneficiaries of the decedent's Individual Retirement Account (IRA) was appropriate because the decedent did not attempt to change the designated beneficiaries in the IRA as required by the IRA contract though use of the form provided by the manager of the IRA. The fact that the decedent executed a later will that did not include the beneficiaries as beneficiaries of the decedent's probate estate was not significant. Haste v. Vanguard Grp., Inc., 502 S.W.3d 611, 2016 Ky. App. LEXIS 104 (Ky. Ct. App. 2016).

Cited in:

Keith v. Cross, 2021 Ky. App. LEXIS 115 (Ky. Ct. App. Nov. 5, 2021).

Research References and Practice Aids

Kentucky Bench & Bar.

Morris, Estate Planning for Retirement Benefits, Volume 74, No. 6, November 2010, Ky. Bench & Bar 14.

CHAPTER 392 Dower and Curtesy

392.010. Husband’s interest in wife’s realty same as wife’s interest in his.

All the sections of this chapter, except KRS 392.100 , that relate to the wife’s dower or interest in the deceased husband’s estate, shall apply in all cases, so far as may be, to the husband’s interest in the wife’s estate.

History. 2148: amend. Acts 1956, ch. 117, § 1.

NOTES TO DECISIONS

1.Quarantine.

The surviving husband is entitled to the privilege of quarantine. Johnson v. Ducobu, 251 S.W.2d 992, 1952 Ky. LEXIS 954 ( Ky. 1952 ).

Cited:

Beach v. Hopperton’s Ex’r, 303 Ky. 272 , 196 S.W.2d 894, 1946 Ky. LEXIS 789 ( Ky. 1946 ); Reynolds v. McGuire, 253 S.W.2d 386, 1952 Ky. LEXIS 1089 ( Ky. 1952 ).

Research References and Practice Aids

Cross-References.

Escheat, property of intestate dying without heirs subject to, KRS 393.020 .

General Assembly not to pass special acts changing law of descent, distribution and succession, Const., § 59, Eighth.

Homestead exemptions, KRS 427.060 to 427.100 .

No right to entirety by survivorship unless such right expressly provided for, KRS 381.050 .

Wife may sell real estate without husband’s jointure, but husband must join to bar curtesy, KRS 404.030 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

392.020. Surviving spouse’s interest in property of deceased spouse — “Dower” and “curtesy” defined.

After the death of the husband or wife intestate, the survivor shall have an estate in fee of one-half (1/2) of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death, and shall have an estate for his or her life in one-third (1/3) of any real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple during the coverture but not at the time of death, unless the survivor’s right to such interest has been barred, forfeited or relinquished. The survivor shall also have an absolute estate in one-half (1/2) of the surplus personalty left by the decedent. Unless the context otherwise requires, any reference in the statutes of this state to “dower” or “curtesy” shall be deemed to refer to the surviving spouse’s interest created by this section.

History. 2132: amend. Acts 1956, ch. 117, § 2.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section was to put the husband in the same position as was enjoyed by the surviving wife prior to its enactment. This section places them on the same plane. Brand Ex'r v. Brand, 109 Ky. 721 , 60 S.W. 704, 22 Ky. L. Rptr. 1366 , 1901 Ky. LEXIS 36 ( Ky. 1901 ). See Irvine v. Gibson, 117 Ky. 306 , 77 S.W. 1106, 25 Ky. L. Rptr. 1418 , 1904 Ky. LEXIS 179 ( Ky. 1904 ).

The purpose of the dower statute is to insure that a surviving spouse will not be left disinherited and destitute; but it was not meant to utterly destroy the testator’s ability to give and devise his property as he desires so long as the spouse was provided for. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

2.Effect of KRS 391.020.

The ancestral property statute (KRS 391.020 ) does not supersede, limit, or override the rights of dower or curtesy by a surviving spouse under this section. Francis v. Justice, 687 S.W.2d 868, 1985 Ky. App. LEXIS 557 (Ky. Ct. App. 1985).

3.Effect of KRS 391.315.

No statute has expressly repealed the provisions of this section, and the Supreme Court does not find any conflict between this section and KRS 391.315 such that the latter statute can be said by implication to repeal this section. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

4.Dower.

Widow was entitled to dower in land which was devised to the use of her husband and at his death to his descendants and distributees. Jacob v. Jacob, 67 Ky. 110 , 1868 Ky. LEXIS 89 ( Ky. 1868 ) (decided under prior law). See Johnson v. Jacob, 74 Ky. 646 , 1876 Ky. LEXIS 15 ( Ky. 1876 ) (decided under prior law).

To entitle the surviving spouse to dower the other must not only have been seized of the fee simple title to the land during coverture, but also he or she must have been entitled to the beneficial use and possession. Rivers v. Morris, 78 S.W. 196, 25 Ky. L. Rptr. 1416 (1904).

The test of the widow’s right to dower is: Was the husband seized of an estate in fee simple during coverture, and did he have the right of possession? Ferguson v. Ferguson, 153 Ky. 742 , 156 S.W. 413, 1913 Ky. LEXIS 921 ( Ky. 1913 ).

The right of dower is an interest in property, not a lien, and not subject to the debts of the husband. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Dower is a vested right which vests at the time of marriage in property then owned by the husband and at the time of acquisition in subsequently acquired property. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Deed by husband conveying homestead to another, though not signed by wife, effectively bars wife from claiming homestead right after husband’s death, and she has only her right of dower in the land, which she may assert at any time during her lifetime. Pugh v. Pugh, 279 Ky. 170 , 130 S.W.2d 40, 1939 Ky. LEXIS 253 ( Ky. 1939 ).

The right of dower vests at the time of marriage or at time of acquisition of subsequently acquired property, and is a vested interest which can be released or relinquished only in manner provided for disposal of real property. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

A wife’s right of dower in property acquired by her husband subsequent to the marriage vests at the time the title is vested in her husband. Brown v. Ingram's Ex'x, 292 Ky. 703 , 168 S.W.2d 31, 1943 Ky. LEXIS 742 ( Ky. 1943 ).

Technically, the term “dower” standing alone refers only to an interest in realty, but when used in a will it may also relate to widow’s share of personalty, depending upon the maker’s intent. Swearingen v. Swearingen's Ex'x, 302 Ky. 107 , 194 S.W.2d 79, 1946 Ky. LEXIS 616 ( Ky. 1946 ).

The inchoate right under this section of one spouse in the realty of the other attaches at the moment the other spouse becomes seized in fee simple during coverture, and such attachment is not prevented by KRS 404.010 . Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

A wife’s inchoate dower is a substantial right which comes into existence at the time of marriage or later acquisition of real estate by the husband, although the right is defeasible by the wife’s prior death. Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., 310 S.W.2d 287, 1958 Ky. LEXIS 389 ( Ky. 1958 ).

Where the testator’s will gave his wife the share of his estate which she would have received had he died intestate and this section was amended to substantially alter the share taken by the widow of an intestate between the execution of the will and the death of the testator, her share was properly determined under the law existing at his death. Scroghan v. Landers, 328 S.W.2d 411, 1959 Ky. LEXIS 105 ( Ky. 1959 ).

If a surviving spouse is not satisfied with the provisions under the will, this section permits the surviving spouse to renounce the will of the deceased spouse, and to receive as her portion of the estate her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Although the debtor husband’s dower interest in his wife’s inheritance under KRS 392.020 constituted property of the estate pursuant to 11 U.S.C.S. § 541(a)(1), and thus, the husband could claim an exemption in his inchoate dower interest the estate under 11 U.S.C.S. § 522(d)(1), he could only apply the exemption to the extent of the fair market value of that interest. Thus, the court reversed the bankruptcy court’s decision and remanded the matter to the bankruptcy court to determine the value of the husband’s dower interest in his wife’s inheritance. Elswick v. Miller (In re Elswick), 2012 U.S. Dist. LEXIS 81098 (E.D. Ky. June 12, 2012).

5.— Indivisible Property.

Where land is indivisible, the court should estimate the value of the land and the probable life of the widow and allot her a sum of money, realized from the sale of the property, in lieu of dower. Rich v. Rich, 70 Ky. 53 , 1869 Ky. LEXIS 257 ( Ky. 1869 ) (decided under prior law).

6.— Acknowledgment of Deed.

When the wife does not join in the conveyance in the body of the deed but merely signs and acknowledges it, such signing and acknowledging is insufficient to pass her dower rights to the purchaser. Prather v. McDowell, 71 Ky. 46 , 1871 Ky. LEXIS 12 ( Ky. 1871 ) (decided under prior law). See Buford's Adm'r v. Guthrie, 77 Ky. 677 , 1878 Ky. LEXIS 97 ( Ky. 1878 ), 690,, 1878 Ky. LEXIS 97 (1879) (decided under prior law).

7.— Land Held in Trust.

The widow is not entitled to dower in land the title to which the husband held in trust. Hence where title was conveyed to the husband and he immediately conveyed to another, pursuant to an agreement, the widow was not entitled to dower therein. Gully v. Ray, 57 Ky. 107 , 1857 Ky. LEXIS 18 ( Ky. 1857 ) (decided under prior law). See McIlvaine v. McIlvanie, 10 Ky. Op. 181, 1879 Ky. LEXIS 109 (Ky. Ct. App. Jan. 15, 1879) (decided under prior law).

8.— Effect of Will.

Where a husband makes a provision for his wife in his will, it will be presumed that the devise or bequest was in lieu of the interest given to her by this section unless a contrary intention appears from the will or is necessarily inferable from it. Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ).

This section and KRS 392.080 must be construed together, and as so construed they mean that where the husband makes a provision for the wife in his will, and she does not renounce the will, she is not entitled to the interest as surviving spouse given to her by this section, unless a contrary intention appears from the will or is necessarily inferable from it. Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ).

Where one clause of husband’s will devised certain real estate to widow, and residuary clause devised remainder of husband’s estate “to those persons entitled to receive the same under the laws of the State of Kentucky,” the widow could claim her dower rights in the residuary estate, in addition to the real estate specifically devised to her, since the direction of the testator that the residue go to those persons entitled to the same under the law constituted a plain expression of the intention of the testator, within the meaning of subsection (2) of KRS 392.080 , that the widow should have her dower in addition to the specific devise. Wilson v. Fisher, 298 Ky. 790 , 184 S.W.2d 104, 1944 Ky. LEXIS 1002 ( Ky. 1944 ).

Husband cannot, by will, defeat widow’s dower right, since widow may renounce the will. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Where second wife who at time of marriage had no actual notice or knowledge of provision contained in judgment granting husband divorce requiring husband to make a will leaving all of his property to his divorced first wife and his children which provision was inserted in judgment pursuant to property settlement, she could renounce will leaving most of husband’s estate to divorced wife and children and could claim her dower rights. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Where a husband makes a provision for his wife in his will, it will be presumed that such devise was in lieu of the interest given her by this section, unless a contrary intention appears from the will or is necessarily inferable. Morguelan v. Morguelan's Ex'r, 307 Ky. 94 , 209 S.W.2d 824, 1948 Ky. LEXIS 686 ( Ky. 1948 ).

Where a husband dies testate, the surviving spouse takes nothing under this section, except as provided by KRS 392.080 in the event of renunciation. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

Where a surviving spouse renounces the will, he receives a life estate in one-third of the real estate. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

Where a will provided that the wife was to take her statutory rights only and no more and the widow elected to take under such devise, her share of estate was measured by statute of descent and distribution as though testator had died intestate. Ellenstein v. Rider, 327 S.W.2d 945, 1959 Ky. LEXIS 81 ( Ky. 1959 ).

Where the testator’s will left his widow one-third of his estate stating that that was the amount of statutory dower at the time the will was made, the widow’s claim that she was entitled to one-half because dower was statutorily changed to that amount was denied. Richie v. Richie, 476 S.W.2d 190, 1972 Ky. LEXIS 380 ( Ky. 1972 ).

This section does not bar a widow from claiming dower and at the same time taking as a beneficiary under her husband’s will. Lurding v. Sonne, 480 S.W.2d 173, 1972 Ky. LEXIS 280 ( Ky. 1972 ).

A husband is precluded not only from making gifts during his lifetime to defeat the dower interests of his wife, but he is also prohibited from disposing of his property by will to defeat dower because, in such a case, the widow can renounce the will and take her interest as provided by this section. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

Although two spouses had executed mutual wills and a will contract “not to revoke or change their respective wills,” the surviving spouse could, upon the death of her husband, renounce her late husband’s will and claim her share as if he had died intestate because the will contract addressed revoking and changing the parties’ respective wills and was silent as to renouncing the decedent’s will. Bauer v. Piercy, 912 S.W.2d 457, 1995 Ky. App. LEXIS 213 (Ky. Ct. App. 1995).

9.— Survivorship of Rights.

The widow’s right to dower in real estate owned by her deceased husband dies with the widow; the personal representative of the deceased widow has no right thereto where the dower was not allotted during the lifetime of the widow. Cain's Adm'r v. Kentucky & I. B. & R. Co., 124 Ky. 449 , 99 S.W. 297, 30 Ky. L. Rptr. 593 , 1907 Ky. LEXIS 196 ( Ky. 1907 ).

10.— Mineral Rights.

The widow is entitled to dower in unopened mines. Trimble v. Kentucky River Coal Corp., 235 Ky. 301 , 31 S.W.2d 367, 1930 Ky. LEXIS 352 ( Ky. 1930 ).

A widow is entitled to dower in mineral leases owned by her husband. Pursifull's Adm'x v. Pursifull, 299 Ky. 245 , 184 S.W.2d 967, 1944 Ky. LEXIS 1042 ( Ky. 1944 ).

Petition that alleged that husband, in purchasing mineral leases, caused them to be placed in the name of a corporation which he controlled, that corporation held the leases “for the use of” the husband within the meaning of this section, and that widow was entitled to claim dower as against person to whom husband had caused leases to be transferred without wife’s signature and without consideration stated a cause of action. Pursifull's Adm'x v. Pursifull, 299 Ky. 245 , 184 S.W.2d 967, 1944 Ky. LEXIS 1042 ( Ky. 1944 ).

Under oil and gas lease which required lessee to commence drilling within a specified time, contained provisions for forfeiture for failure of lessee to comply with conditions of drilling, and spoke of lease being kept “alive” by assignee, the lessee did not acquire a fee simply title to the oil and gas, and his widow therefore had no dower right in the lease. Van Camp v. Evans, 306 Ky. 59 , 206 S.W.2d 38, 1947 Ky. LEXIS 938 ( Ky. 1947 ).

Where husband and wife conveyed the oil and gas interests in a particular tract and the grantee agreed to deliver to them one-eighth of all oil produced, the one-eighth interest of the grantors was a reservation appurtenant to the land, so that after the real estate was sold by execution to which the wife was not a party and the husband died, the wife was entitled only to the interest on one-third of the one-eighth royalties from the oil produced. Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., 310 S.W.2d 287, 1958 Ky. LEXIS 389 ( Ky. 1958 ).

11.— Life Estate.

The widow is not entitled to dower in land in which her husband was seized with only a life estate. Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ).

In no case is the widow entitled to dower under the statute where the husband had only a life estate in the land. Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ).

Where one inherits land and then deeds away a life interest in it, the wife is entitled to dower. Carr v. Hart, 232 Ky. 37 , 22 S.W.2d 432, 1929 Ky. LEXIS 385 ( Ky. 1929 ).

Where land was deeded in trust for testator’s son during his life and then to his lawful heirs with no power in the son “over the land or to sell or dispose of same,” upon the death of the son his widow was not entitled to dower as her deceased husband was only a life tenant. Bodkin v. Wright, 266 Ky. 798 , 100 S.W.2d 824, 1937 Ky. LEXIS 8 ( Ky. 1937 ).

A life estate is not subject to dower. Ford v. Yost, 300 Ky. 764 , 190 S.W.2d 21, 1945 Ky. LEXIS 623 ( Ky. 1945 ).

12.— Relinquishment of Rights.

A married woman who files a pleading in court, which is sworn to by her, asserting that she has relinquished her dower rights in land, cannot thereafter claim dower rights in the same land after the death of her husband. Craddock v. Tyler, 66 Ky. 360 , 1867 Ky. LEXIS 193 ( Ky. 1867 ) (decided under prior law).

Where wife, in order to facilitate the sale of her husband’s land, had the salesman publicly announce that she would not claim dower against the purchaser, and the announcement was made and the land sold, she thereby relinquished her dower rights. Connolly v. Branstler, 66 Ky. 702 , 1868 Ky. LEXIS 62 ( Ky. 1868 ) (decided under prior law).

A widow was estopped to claim dower where the land was sold under a decree of court in an action to which she was a party and in which she failed to assert her claim. Stone v. Stone, 10 Ky. Op. 33, 1878 Ky. LEXIS 119 (Ky. Ct. App. Sept. 19, 1878) (decided under prior law).

The relinquishment of her dower rights in land received in exchange does not estop her from claiming dower out of the land given in exchange. Stevenson v. Brasher, 90 Ky. 23 , 13 S.W. 242, 11 Ky. L. Rptr. 799 , 1890 Ky. LEXIS 36 ( Ky. 1890 ) (decided under prior law).

When a wife signs a mortgage with her husband to secure a debt she relinquishes her right to dower and this relinquishment continues during the lifetime of the debt. Clift v. Williams, 105 Ky. 559 , 49 S.W. 328, 1899 Ky. LEXIS 239 ( Ky. 1899 ).

A widow who receives a devise and bequest made to her in her deceased husband’s will relinquishes her right to dower in real estate of which the husband died intestate. Smith v. Perkins, 148 Ky. 387 , 146 S.W. 758, 1912 Ky. LEXIS 446 ( Ky. 1912 ).

Where the husband is seized with fee simple title to realty and the wife joins him in a deed creating a life estate in another with remainder to the husband, the wife has not relinquished her dower rights in the fee, as a release of dower will only operate to the extent of accomplishing the purposes for which it was executed. Carr v. Hart, 232 Ky. 37 , 22 S.W.2d 432, 1929 Ky. LEXIS 385 ( Ky. 1929 ).

The surviving husband was not entitled to his distributable share of personal property of his deceased wife where he and she entered into a parol agreement to the effect that each would relinquish all rights to the property of the other and that each would give, by will, his or her property as he or she pleased and wills were executed in which neither gave any property to the other. Smith's Adm'r v. Price, 252 Ky. 806 , 68 S.W.2d 422, 1934 Ky. LEXIS 867 ( Ky. 1934 ).

Widow’s right of dower is an individual interest in her husband’s property and not merely a lien, and it can be released only where she pursues the law in that regard. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Wife did not waive her dower interest in husband’s property forcibly sold under a distraint warrant, where the sale involved only the husband’s interest in the property, and where he placed the proceeds remaining after various tax claims had been satisfied in a joint bank account. Lurding v. Sonne, 480 S.W.2d 173, 1972 Ky. LEXIS 280 ( Ky. 1972 ).

If the surviving spouse fails to renounce the will, she loses her right to dower. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Where plaintiff/spouse did not renounce the will as required by KRS 392.080 and instead, she probated the will and accepted and received the benefits of the will, by doing this she lost her right to her dower interest, and took as any other devisee; because she had no dower interest, she had no standing to assert her claim that a fraudulent transfer was made to defeat her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

13.— — Antenuptial Contract.

A written antenuptial contract made by parties contemplating marriage whereby the prospective wife relinquishes her right to dower will be enforced if there is no fraud, deception, misrepresentation, concealment, or undue influence. Gaines v. Gaines' Adm'r, 163 Ky. 260 , 173 S.W. 774, 1915 Ky. LEXIS 217 ( Ky. 1915 ).

A parol antenuptial contract whereby each of the parties renounces interest in the other’s estate as survivor and retains control of his or her separate estate is void. Jones' Adm'r v. Jones' Adm'r, 280 Ky. 37 , 132 S.W.2d 509, 1939 Ky. LEXIS 54 ( Ky. 1939 ).

14.— — Postnuptial Contract.

Parol postnuptial contracts whereby the husband and wife release all interest in the other’s personal estate on the other’s death are valid. Jones' Adm'r v. Jones' Adm'r, 280 Ky. 37 , 132 S.W.2d 509, 1939 Ky. LEXIS 54 ( Ky. 1939 ).

Oral agreement between husband owning real estate and wife owning personal property, whereby each waived all rights by reason of marriage in property of other, was void as wife could not orally dispose of her inchoate dower right in husband’s real estate. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

Where decedent and his wife had entered a postnuptial contract by which the decedent agreed to bequeath the wife their residence, its contents, and the interest on $7,000 for her life or until her remarriage and released any claim he might have to her property by reason of their marriage, there was sufficient consideration for her relinquishing any additional claims to his property. Campbell v. Campbell, 377 S.W.2d 93, 1964 Ky. LEXIS 488 ( Ky. 1964 ).

15.— Fraud.

Where the husband and wife are separated, but not divorced, and the husband buys land having the title transferred to his son for the purpose of defeating the wife’s dower rights, the wife is entitled to dower in the land at the death of the husband. Redmond's Adm'x v. Redmond, 112 Ky. 760 , 66 S.W. 745, 23 Ky. L. Rptr. 2161 , 1902 Ky. LEXIS 220 ( Ky. 1902 ).

A conveyance of real estate made after agreement to marry, without consideration and without the knowledge or consent of intended wife, is a fraud on the wife and will be declared void to the extent that it deprives her of dower in the real estate conveyed. Anderson v. Anderson, 194 Ky. 763 , 240 S.W. 1061, 1922 Ky. LEXIS 245 ( Ky. 1922 ).

Where the husband, during the existence of the marital relationship, pays for land and has the deed made to another but keeps possession of the land and uses it until his death as his own, his widow is entitled to have the deed set aside and dower assigned to her. Rowe v. Ratliff, 268 Ky. 217 , 104 S.W.2d 437, 1937 Ky. LEXIS 436 ( Ky. 1937 ).

Fact that husband, just before his marriage, had transferred practically all of his funds to his sister, who advanced him money whenever he needed it, held to show that an understanding existed between them for purpose of preventing wife from enforcing her marital rights in husband’s property. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

A man may not make a voluntary transfer of either his real or personal estate with intent to prevent his wife or intended wife from sharing in such property at his death; and if such a transfer is made the wife, on the husband’s death, may assert her marital rights in such property in the hands of the donee. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

An absolute bona fide gift of personalty, made to a third person by a husband or intended husband, is not a fraud on the marital rights of the wife, even though made with the intent and purpose of depriving her of her share in the property; but if the transfer is colorable, and the husband or intended husband does not part with absolute dominion over the property, the transfer is fraudulent. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

A gift causa mortis by a husband to a third person is a fraud on the wife’s marital rights, where the gift is made to prevent her sharing in the property, since the gift does not take effect until the death of the donor. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

A transfer of property may be avoided where the grantor made it with an intent to marry and to defeat the marital rights of any person he might marry, whether or not he was then engaged to be married; it is not necessary that the fraudulent intent be directed against any particular person. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

Wife could not, as administratrix of husband’s estate, recover from husband’s sister funds which he had unconditionally transferred to her in fraud of her marital rights, since as administratrix she had only those rights which the deceased husband had. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

In action to recover from donee property transferred by prospective husband in fraud of wife’s marital rights, judgment should be entered against person to whom donee, before her death, had given the property. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

Evidence that a father borrowed money from his son to purchase real estate for the family home and placed the title in the son’s name to secure the loan and the son later advanced substantial sums to pay for improvements, street assessments and taxes, but permitted the father to exercise complete control over the property, failed to show any fraud or bad faith with respect to the dower rights of father’s second wife. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

A husband, properly, may not make a voluntary transfer of either his real or personal estate with the intent to prevent his wife from sharing in such property at his death, if such a transfer is made, the wife, on the husband’s death, may assert her marital rights in such property in the hands of the donee. Benge v. Barnett, 309 Ky. 354 , 217 S.W.2d 782, 1949 Ky. LEXIS 699 ( Ky. 1949 ).

Where deceased, shortly before his death, gave to his brother and sisters, who were not dependent upon him for support, 45% of the personal property he owned at the time, and in his will sought to deprive his widow entirely of any interest in his personalty, the facts established husband’s intention to defraud his wife of her distributable share of his personal estate, and she was entitled to recover one-half from each of the donees. Benge v. Barnett, 309 Ky. 354 , 217 S.W.2d 782, 1949 Ky. LEXIS 699 ( Ky. 1949 ).

An attempted gift by a husband of more than one-half of his personalty in an attempt to defeat the dower interest of his widow would be set aside. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

Absent an agreement of the parties, a disposition of property with the intent to defeat the right of dower creates a presumption of fraud upon the surviving spouse, and the deposit of approximately seven-eighths (7/8) of the personal estate of the decedent into a joint account with his children left no doubt of his intent to defeat the movant’s dower interest. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

The estate cannot bring an action to rescind a transfer that was made with the intent to deprive the wife or her dower interest; only the widow individually had such right. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Life-insurance beneficiary has only a contingent interest in the benefits of the policy, and where the insured retains the right to change the beneficiary, that right is virtually absolute; where a dying spouse exercises that right to remove the surviving spouse as a named beneficiary and instead names a trust for the benefit of the minor child of the marriage, the surviving spouse cannot claim fraud on his or her statutory spousal interest. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

16.— Trust Property.

A freehold interest as cestui que trust is an adequate basis for dower. Pursifull's Adm'x v. Pursifull, 299 Ky. 245 , 184 S.W.2d 967, 1944 Ky. LEXIS 1042 ( Ky. 1944 ).

17.— Defeasible Fee.

Where the husband owns a defeasible fee in land, the widow on his death is entitled to dower therein. Landers v. Landers, 151 Ky. 206 , 151 S.W. 386, 1912 Ky. LEXIS 774 ( Ky. 1912 ).

18.— Remainder Interest.

The widow is not entitled to dower in a remainder or reversionary interest of the husband in land where there was no seisin by the husband in fact or in law at any time during the marriage. Carter v. McDaniel, 94 Ky. 564 , 23 S.W. 507, 15 Ky. L. Rptr. 349 , 1893 Ky. LEXIS 108 ( Ky. 1893 ) (decided under prior law).

The remainderman is not seized with title or actual possession sufficient to give his widow dower rights in land if he predeceases the life tenant. Maupin v. Maupin's Guardian, 110 S.W. 840, 33 Ky. L. Rptr. 658 (1908).

19.— Common-law Marriage.

Woman who entered into common-law marriage with deceased in Ohio and lived with him as wife there and in Kentucky until his death, they holding themselves out as husband and wife, was entitled to dower and widow’s statutory allowance in deceased’s estate. Hoffman v. Hoffman, 285 Ky. 55 , 146 S.W.2d 347, 1940 Ky. LEXIS 598 ( Ky. 1940 ).

Where Kentucky citizens went to Florida and entered into a common-law marriage which was valid there, and then returned to Kentucky to live, on husband’s death the wife was entitled to the widow’s statutory portion of his estate. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

20.— Equitable Title in Property.

Where the husband purchases real estate and the vendor gives his title bond for a conveyance upon the payment of the remainder of the purchase price, the widow of the purchaser is entitled to dower therein subject to the payment of the remainder of the purchase price. Harrison v. Griffith, 67 Ky. 146 , 1868 Ky. LEXIS 95 ( Ky. 1868 ) (decided under prior law). See Brewer v. Vanarsdale's Heirs, 36 Ky. 204 , 1838 Ky. LEXIS 25 ( Ky. 1838 ) (decided under prior law).

Where a husband holds equitable title of the character that entitles him to have or enforce a conveyance of the legal title, as distinguished from a mere equity in the land or the holding of title as agent or trustee, his widow is entitled to dower interest in the property. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

21.— Forcible Detainer Action.

Dower right of widow of landlord includes right to maintain forcible detainer action against tenant of deceased husband holding over. Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ).

22.— Cash Value of Right.

In determining the cash value of a dower right the most accurate mortality table which is readily available to the bench and bar should be used and the computation would be based on the interest rate generally available at the time on investments specified in KRS 386.020 . Morris v. Morris, 293 S.W.2d 243, 1956 Ky. LEXIS 62 ( Ky. 1956 ).

23.— Attorneys’ Fees.

A widow in seeking to have the estate settled and her dower rights determined and assigned is proceeding as a beneficiary and not as a creditor and is, therefore, entitled to a reasonable allowance out of the estate for her attorney’s fees, where the conditions justify the action and other beneficiaries receive some benefit from the determination of rights for which the suit is instituted. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

24.— Execution Sale.

The widow does not lose her dower rights when the land of her husband is sold at a judicial sale to satisfy a judgment against the husband as surety on a sheriff’s bond. Vinson v. Gentry, 21 S.W. 578, 14 Ky. L. Rptr. 804 (1893) (decided under prior law).

Where husband’s property was sold on execution prior to his death, he did not die seized of the property and his widow’s dower interest was only a life estate in one-third. Walters v. Anderson, 361 S.W.2d 31, 1962 Ky. LEXIS 226 ( Ky. 1962 ).

25.— Equivalent of Dower.

Where husband had title to land placed in son’s name, to secure loan from son, and prior to husband’s death a part of the land was sold to an innocent purchaser without the wife’s jointure, the wife was entitled to an allotment of equivalent dower in other real estate. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

26.— Condemnation Proceeds.

A wife is entitled to share in the proceeds from condemnation of her husband’s real estate by virtue of her inchoate dower right. United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F. Supp. 40, 1943 U.S. Dist. LEXIS 2068 (D. Ky. 1943 ).

27.— Priority of Claims.

The widow has a right to dower in partnership lands but the dower right is subordinate to the claims of the partnership creditors. Galbraith v. Gedge & Bros., 55 Ky. 631 , 1855 Ky. LEXIS 80 ( Ky. 1855 ) (decided under prior law).

The dower rights of the widow are inferior to tax liens. Mulligan v. Mulligan, 161 Ky. 628 , 171 S.W. 420, 1914 Ky. LEXIS 148 ( Ky. 1914 ).

Delinquent taxes on the land of a deceased debtor set aside for dower should be charged against the dower interest, and taxes on the portion set aside to satisfy a lien should be charged against the creditor. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

The tax liens provided in KRS 134.420 are superior to the inchoate right of dower. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

The lien provided by KRS 134.230 on the real estate of the sheriff is not superior to the dower right. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

A tax lien has precedence over an inchoate right of dower. Stokes v. Commonwealth, 286 Ky. 391 , 150 S.W.2d 892, 1941 Ky. LEXIS 257 ( Ky. 1941 ).

A vendor’s lien is superior to the right of dower, regardless of whether the lien is retained by statement in the deed. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

A lien for taxes or for street improvement assessments is superior to the right of dower, and a person who is subrogated to the lien by payment of the tax or assessment retains the superiority. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where son advanced money to enable father to purchase property, and title was placed in son’s name to secure the advancement, the son had the equivalent of a vendor’s lien, which was superior to the mother’s right of dower. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where married man acquired title to real estate by virtue of a court action, the lien for fees of the attorney who prosecuted the action was superior to the dower and homestead interest of the client’s wife. Brown v. Ingram's Ex'x, 292 Ky. 703 , 168 S.W.2d 31, 1943 Ky. LEXIS 742 ( Ky. 1943 ).

Where a husband’s conveyance of realty to himself and his wife by the entireties was set aside as being in fraud of creditor, the wife’s inchoate dower interest of a life estate in one-third of the realty had preference to the creditor’s claim. Mattingly v. Gentry, 419 S.W.2d 745, 1967 Ky. LEXIS 184 ( Ky. 1967 ).

28.— Estoppel.

A widow who accepts a devise made in her husband’s will cannot claim dower in addition thereto; also she is estopped to claim property as her own which the testator devised to another in the same will; likewise she is estopped from contesting any transfer made by her husband during his lifetime of his property to another. Cooke v. Fidelity Trust & Safety-Vault Co., 104 Ky. 473 , 47 S.W. 325, 20 Ky. L. Rptr. 667 , 1898 Ky. LEXIS 181 ( Ky. 1898 ).

Where husband conveyed realty to his wife, as part of a separation agreement, and for a valuable consideration, the deed specifying that the husband was relinquishing all claims against the wife including “dower,” and the wife sold the land and died possessed of the purchase price realized therefrom, the husband had waived his curtesy rights and was estopped to assert them. Simmons Adm'r v. Simmons, 150 Ky. 85 , 150 S.W. 59, 1912 Ky. LEXIS 864 ( Ky. 1912 ).

Where the wife of a deceased former sheriff was estopped by KRS 382.270 from asserting a deed by which he conveyed property to her against the claim of his surety as subrogee of a lien imposed by KRS 134.230 , she was not estopped from asserting her dower interest in the property. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Where a husband’s property was sold on execution of $16,000 more than the amount of the judgment, the purchaser designated $4,000 of the excess as the value of the wife’s inchoate dower, and that account was set aside by the court then later paid to the wife under a court order stating that it was paid to her as assignee of her husband and without prejudice to her dower rights, the wife was not estopped from asserting her dower right in the property after the husband’s death. Walters v. Anderson, 361 S.W.2d 31, 1962 Ky. LEXIS 226 ( Ky. 1962 ).

29.— Joint Account.

A husband has no legal right to dispose of more than one-half of his property with intent to defeat a dower claim by his widow; it follows that a husband cannot be permitted to circumvent the law and intentionally defeat a dower claim by means of a deposit into a joint account with someone other than his wife, and KRS 391.315(1) is interpreted to mean that upon the death of a party to a joint account, the funds on deposit therein do not belong to the survivor if: (1) there is clear and convincing evidence of a different intention at the time the account was created, or (2) if the depositor was not legally entitled to make such a disposition of the funds. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

It is true that KRS 391.315 provides that funds deposited into a joint account belong to the survivor as against the estate of the decedent upon the death of the other party to the account, but this is subject to a statutory limitation that the funds do not become the property of the survivor if there is clear and convincing evidence of a different intention at the time the account was created; there is also another limitation, necessarily implied in law, that the survivor of parties to a joint account cannot become the owner of the funds in the account upon the death of the other party if the party who deposited the funds was not legally entitled to dispose of them in such a manner. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

30.— Partition Between Tenants in Common.

A voluntary partition made between tenants in common, free from fraud and fairly made, will transfer the rights of dower of the wives of the tenants in common even though the wives do not join in the deeds. Gross v. Leiber's Adm'r, 10 Ky. Op. 316, 1879 Ky. LEXIS 196 (Ky. Ct. App. June 26, 1879).

31.— Right to Compel Partition.

The widow does not have such an interest in land of her husband as to permit her to maintain a law suit for its sale and allotment of dower from the proceeds, by making it appear that dower could not be assigned to her without impairing the value of the real estate. Liederkranz Soc. v. Beck, 71 Ky. 597 , 1871 Ky. LEXIS 105 ( Ky. 1871 ).

32.— Waiver.

The widow who does not answer a summons in a suit in which her deceased husband’s land is being subjected to the payment of his debts by his creditors, does not thereby waive her right to dower, but she must accept out of the proceeds of the sale an equitable compensation for the rights of dower. Merriwether v. Sebree, 65 Ky. 232 , 1867 Ky. LEXIS 62 ( Ky. 1867 ) (decided under prior law).

33.Curtesy.

The surviving husband takes no curtesy in land which was held in trust for the use and benefit of his deceased wife, for life, and the remainder to her “issue.” Churchill v. Reamer, 71 Ky. 256 , 1871 Ky. LEXIS 46 ( Ky. 1871 ) (decided under prior law).

Where widow remained in possession of the land of her deceased husband with the consent of the adult children, and one of the children died survived by a husband, the surviving husband was entitled to curtesy in the land. There was sufficient seisin in the daughter to satisfy the law. Carr v. Givens, 72 Ky. 679 , 1873 Ky. LEXIS 27 ( Ky. 1873 ) (decided under prior law).

Where father conveyed land to daughter, and father, daughter and her husband continued to live upon the land until the death of the daughter, the surviving husband was entitled to curtesy in the land. The father held the land during the lifetime of the daughter for her use. Yankey v. Sweeney, 85 Ky. 55 , 2 S.W. 559, 8 Ky. L. Rptr. 944 , 1887 Ky. LEXIS 14 ( Ky. 1887 ) (decided under prior law).

A surviving husband is not entitled to claim an estate for life in one-third of the real estate owned by his deceased wife if he claims a homestead under KRS 427.070 . He must elect between these claims and the election of one bars a right to the other. Carpenter v. Hazelrigg, 103 Ky. 538 , 45 S.W. 666, 20 Ky. L. Rptr. 231 , 1898 Ky. LEXIS 90 ( Ky. 1898 ).

This statute is not applicable to the curtesy rights of the husband in land acquired before its enactment. Mitchell v. Violett, 104 Ky. 77 , 47 S.W. 195, 20 Ky. L. Rptr. 378 , 1898 Ky. LEXIS 158 ( Ky. 1898 ). See Hall v. Moore, 105 S.W. 414, 32 Ky. L. Rptr. 56 (1907).

A surviving husband has no curtesy right in land in which his wife held a remainder interest where the land was adversely possessed from the death of the life tenant until the death of wife because there was no seisin of the land by the wife. Parsons v. Justice, 163 Ky. 737 , 174 S.W. 725, 1915 Ky. LEXIS 310 ( Ky. 1915 ).

Where property was devised to five children to be divided equally between them at the end of 15 years and one of the daughters died before the expiration of the 15-year period, intestate and without issue, the daughter was seized with a defeasible fee in the property and her surviving husband was entitled to curtesy. Cooper's Adm'r v. Clarke, 192 Ky. 404 , 240 S.W. 361, 1921 Ky. LEXIS 172 ( Ky. 1921 ).

It was error to award a widower a curtesy interest in the proceeds of the widower’s deceased wife’s life insurance policy, based on a finding that the wife committed fraud on the widower’s “dower” interest by changing the policy’s beneficiary, because it was error to find the policy was part of the wife’s estate, since (1) the wife never possessed the policy’s proceeds, (2) the proceeds were only an expectancy, and (3) the wife had the absolute authority to change the beneficiary without the widower’s knowledge or consent. Kiphart v. Bays, 2014 Ky. App. LEXIS 50 (Ky. Ct. App. Mar. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1025 (Ky. Ct. App. Mar. 21, 2014).

Court of appeals properly ruled that a surviving husband's statutory spousal interest did not attach to life insurance proceeds because they were never part of the decedent's estate since the decedent retained an absolute right to change the beneficiary; the decedent's decision to exercise the right to change the beneficiary could not be fraud on the husband's statutory interest because she never owned the proceeds of the insurance policies, and thus, they never become part of her estate. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

34.— Mortgage.

Where a husband joins in a mortgage he releases his curtesy rights in the mortgaged real estate to the extent of the mortgage and, upon sale of the property he has curtesy rights to one-half of the proceeds left after payment of the mortgage debt. Ketterer v. Nelson, 146 Ky. 7 , 141 S.W. 409, 1911 Ky. LEXIS 758 ( Ky. 1911 ).

35.— Life Estate.

Where a wife who was entitled to a portion of her father’s estate subject to a life estate in her mother predeceased the mother survived by a husband, the husband was not entitled to curtesy in the land that was subject to the life estate. Stewart v. Barclay, 65 Ky. 550 , 1866 Ky. LEXIS 199 ( Ky. 1866 ) (decided under prior law).

Where a testator devises land to his wife for life and then to his daughter and the daughter dies before the wife of the testator survived by a husband, the surviving husband is not entitled to curtesy in the land because his wife was not seized of a fee simple title during coverture. Chilton v. Chilton, 217 Ky. 258 , 289 S.W. 275, 1926 Ky. LEXIS 74 ( Ky. 1926 ).

36.— Priority of Claims.

A lien for street improvements is superior to the claim for curtesy. Ketterer v. Nelson, 146 Ky. 7 , 141 S.W. 409, 1911 Ky. LEXIS 758 ( Ky. 1911 ).

37.— Necessary Parties.

Where husband of one of joint owners of land was not made party to action to sell land for purpose of making division among joint owners, he was not divested of his inchoate interest and could not be forced to accept a share of the proceeds of the sale. Perry v. Bailey, 290 Ky. 129 , 160 S.W.2d 617, 1942 Ky. LEXIS 374 ( Ky. 1942 ).

The husband of an owner of an undivided interest in a remainder is not a necessary or proper party to an equitable action for partition of the remainder interest so long as the life tenant is living, because the wife was not seized of her estate in fee simple and the husband’s interest under this section applies only to property of which the wife was seized in fee simple during coverture, however, upon the death of the life tenant the wife becomes seized, the husband’s interest arises under this section, and he thereby becomes a necessary party to an equitable action for partition. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

Where, during the pendency of an equitable action for partition of undivided remainder interests in realty, the life tenant died and the husband of the owner of an undivided interest in the remainder was not made a party, on appeal from the judgment ordering partition the court of appeals reversed so much of the judgment that failed to divest the husband of his inchoate interest with instructions to allow the husband to become a party and ratify the judgment and upon his failure to do so for the opposing parties to make him a party. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

38.Surplus Property.

The surplus personalty provided for in this section is the personalty remaining after the debts, funeral expenses and widow’s exemption have been deducted from the gross personalty possessed by decedent at the time of his death. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

“Surplus” as used in this section means what is left after payment of funeral expenses, charges of administration, and debts. Mattingly v. Gentry, 419 S.W.2d 745, 1967 Ky. LEXIS 184 ( Ky. 1967 ).

Cited:

Dougherty v. United States, 175 F. Supp. 339, 1959 U.S. Dist. LEXIS 2948 (E.D. Ky. 1959 ), rev’d, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. 1961); Moore v. United States, 214 F. Supp. 603, 1963 U.S. Dist. LEXIS 10294 (W.D. Ky. 1963 ); Hicks v. Oak’s Adm’r, 233 Ky. 27 , 24 S.W.2d 917, 1930 Ky. LEXIS 488 ( Ky. 1930 ); Mason’s Adm’r v. Mason’s Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 7 44 ( Ky. 1931 ); Ruh’s Ex’rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ); Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ); Truitt v. Truitt’s Adm’r, 290 Ky. 632 , 162 S.W.2d 31, 1942 Ky. LEXIS 454 , 140 A.L.R. 1127 ( Ky. 1942 ); Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ); Ferguson v. Board of Drainage Comm’rs, 299 Ky. 538 , 186 S.W.2d 16, 1945 Ky. LEXIS 460 ( Ky. 1945 ); Purcell v. Purcell, 303 Ky. 478 , 198 S.W.2d 43, 1946 Ky. LEXIS 874 ( Ky. 1946 ); Lincoln Bank & Trust Co. v. Huber, 240 S.W.2d 89, 1951 Ky. LEXIS 953 ( Ky. 1951 ); Reynolds v. McGuire, 253 S.W.2d 386, 1952 Ky. LEXIS 1089 ( Ky. 1952 ); Henderson’s Adm’r v. Bewley, 264 S.W.2d 680, 51 A.L.R.2d 159 ( Ky. 1953 ), cert. denied, Bewley v. Henderson, 348 U.S. 926, 75 S. Ct. 334, 99 L. Ed. 726, 1955 U.S. LEXIS 1244 (1955), overruled, Marcum v. Marcum, 377 S.W.2d 62, 1964 Ky. LEXIS 476 ( Ky. 1964 ), overruled in part, Marcum v. Marcum, 377 S.W.2d 62, 1964 Ky. LEXIS 476 ( Ky. 1964 ); Hays v. Coy, 264 S.W.2d 258, 1954 Ky. LEXIS 657 ( Ky. 1954 ); Smith v. Vanover, 264 S.W.2d 884, 1954 Ky. LEXIS 7 09 ( Ky. 1954 ); Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ); Harlan Nat’l Bank v. Brown, 317 S.W.2d 903, 1958 Ky. LEXIS 121 ( Ky. 1958 ); Mattingly v. Gentry, 419 S.W.2d 745, 1967 Ky. LEXIS 184 ( Ky. 1967 ); Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Brown v. Sammons, 743 S.W.2d 23, 1988 Ky. LEXIS 7 ( Ky. 1988 ); Mathias v. Martin, 87 S.W.3d 859, 2002 Ky. LEXIS 156 ( Ky. 2002 ); First Union Home Equity Bank, N.A. v. Bedford Loan & Deposit Bank, 111 S.W.3d 892, 2003 Ky. App. LEXIS 178 (Ky. Ct. App. 2003); Keith v. Cross, 2021 Ky. App. LEXIS 115 (Ky. Ct. App. Nov. 5, 2021).

Opinions of Attorney General.

Exempt property under KRS 391.030 should not be charged against the one-half of the surplus personalty distributable under this section when the surviving spouse has renounced the will, since former subsection (4) of KRS 391.030 specifically allowed the $3500 (now $15,000) personalty exemption for a surviving spouse who had renounced a will under KRS 392.080 , and, were that $3500 to be considered as a set-off against the surplus under this section, there would in fact have been no exemption; accordingly, if, after payment of the subject $3500 and the debts and expenses, there remains any personalty for further distribution, the surviving spouse is entitled to “an absolute estate in one-half” of any such surplus in accord with this section. OAG 81-256 .

Research References and Practice Aids

Cross-References.

Advancements have no effect on dower, KRS 391.140 .

Curtesy not barred unless husband joins in conveyance, KRS 404.030 .

Surviving spouses statutory exemption, KRS 391.030 .

Kentucky Bench & Bar.

Eardly & Ruml, My Old Kentucky Home or the Sunshine State? Residency and Estate Planning Issues for Kentucky “Snowbirds” in Florida, Volume 74, No. 6, November 2010, Ky. Bench & Bar 20.

Kentucky Law Journal.

Matthews, Dower, Principal and Income, Perpetuities, and Intestate Succession, 45 Ky. L.J. 111 (1956).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky?, 66 Ky. L.J. 889 (1977-1978).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Disclaimer of Transfer at Death, Form 230.17.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Surviving Spouse’s Renunciation of Will, Form 230.12.

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.6.

392.030. Actual possession by deceased spouse not necessary for dower or curtesy.

If the deceased spouse, during the coverture, was seized in law of the fee simple of any real estate, then the surviving spouse may have dower or curtesy in that real estate, although the deceased spouse never had actual possession.

History. 2134: amend. Acts 1974, ch. 386, § 77.

Research References and Practice Aids

Northern Kentucky Law Review.

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

392.040. Lands in which surviving spouse to have no dower or curtesy.

  1. The surviving spouse shall not have dower or curtesy in land sold but not conveyed by the deceased spouse before marriage, nor in land sold in good faith after marriage to satisfy an encumbrance created before marriage or created by deed in which the surviving spouse joined, or to satisfy a lien for the purchase money. If, however, there is a surplus of the land or proceeds of sale after satisfying the lien, surviving spouse may have dower or curtesy out of that surplus of the land or compensation out of the surplus of the proceeds, unless they were received or disposed of by the decedent in his lifetime.
  2. If the decedent held land by executory contract only, the surviving spouse shall not have dower or curtesy in the land, unless decedent owned such an equitable right at the time of his death.

History. 2135, 2142: amend. Acts 1974, ch. 386, § 78.

NOTES TO DECISIONS

1.Mortgage or Lien.

Where the husband’s land was sold under a mortgage in which the wife had joined, and general creditors of the husband joined in the suit, the sum realized at the sale should be applied first to the mortgage debt and the wife was entitled to assignment of potential rights of dower out of the remainder which could not be levied upon by the general creditors. Potter v. Skiles, 114 Ky. 132 , 70 S.W. 301, 24 Ky. L. Rptr. 910 , 1902 Ky. LEXIS 146 ( Ky. 1902 ), op. withdrawn, sub. op. in part, 114 Ky. 132 , 71 S.W. 627, 24 Ky. L. Rptr. 1457 , 1903 Ky. LEXIS 300 ( Ky. 1903 ).

The wife, having joined in the mortgage or deed creating the lien to satisfy which sale is made, is not endowed of the land. In such a situation, the wife has dower rights in the surplus, but she does not have to be made a party in the foreclosure sale. Morgan v. Wickliffe, 115 Ky. 226 , 72 S.W. 1122, 24 Ky. L. Rptr. 2104 , 1903 Ky. LEXIS 95 ( Ky. 1903 ). See Nelson v. Dunn, 215 Ky. 292 , 284 S.W. 1084, 1926 Ky. LEXIS 711 ( Ky. 1926 ).

Where one borrows money and uses it to pay the purchase price of land bought from another the lender has no lien on the land and if it is sold during the lifetime of the husband to pay the debt created by borrowing the money, it is not a sale “to satisfy a lien for the purchase money” under this section, and the widow not having joined in the deed is entitled to dower. Hogg v. Potter, 76 S.W. 35, 25 Ky. L. Rptr. 492 , 1903 Ky. LEXIS 298 (Ky. Ct. App. 1903).

A vendor’s lien is superior to the right of dower, regardless of whether the lien is retained by statement in the deed. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where the debtor husband had no present interest in the subject property at the time a purchase money mortgage interest was executed, and foreclosure occurred, the first mortgagee maintained mortgage priority over a second mortgagee; although he had a vested curtesy interest, a dower/curtesy interest, as an inchoate right, was merely an expectancy of an interest or a future interest contingent upon him surviving the debtor wife. First Union Home Equity Bank, N.A. v. Bedford Loan & Deposit Bank, 111 S.W.3d 892, 2003 Ky. App. LEXIS 178 (Ky. Ct. App. 2003).

2.Contract to Convey Prior to Marriage.

A wife is not entitled to dower in lands which her husband bound himself to convey prior to his marriage to her. Mineral Development Co. v. Hall, 115 S.W. 230 ( Ky. 1909 ).

A widow, who was the decedent’s second wife, was not entitled to dower in property of her deceased husband, in a case where the deceased husband and his first wife in a divorce settlement contracted to convey the property to their children and the contract was incorporated in the divorce judgment. North v. North, 638 S.W.2d 711, 1982 Ky. App. LEXIS 243 (Ky. Ct. App. 1982).

3.Surplus.

Where the land of the husband has been sold to satisfy purchase-money liens and mortgages, the claim of the widow is limited to the surplus realized on the sale. Helm v. Board, 114 Ky. 289 , 70 S.W. 679, 24 Ky. L. Rptr. 1037 , 1902 Ky. LEXIS 158 ( Ky. 1902 ).

Where a wife dies owning land against which there are liens and the land is sold under a court order, the lien debts should be paid and dower allotted to the husband out of the remainder after the payment of said lien debts. Hamilton's Adm'r v. Riney, 140 Ky. 476 , 131 S.W. 287, 1910 Ky. LEXIS 306 ( Ky. 1910 ).

Under this section the widow may have dower out of the surplus or compensation out of it. McClain v. McClain, 152 Ky. 206 , 153 S.W. 234, 1913 Ky. LEXIS 634 ( Ky. 1913 ).

4.Condemnation.

A wife is entitled to share in the proceeds from condemnation of her husband’s real estate by virtue of her inchoate dower right. United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F. Supp. 40, 1943 U.S. Dist. LEXIS 2068 (D. Ky. 1943 ).

5.Property Settlement.

Provision in divorce judgment, carrying out property settlement agreement, which required husband to make a will leaving his estate to the divorced wife and their children, did not so divest the husband of title to his estate as to deprive second wife of her dower rights. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

6.Present Value.

Where the land of the husband was sold in a mortgage foreclosure, in which mortgage the wife joined, and the surplus fund was in court at the time of the death of the husband, the widow could take the present value of her dower absolutely, instead of a life estate in the fund, in the discretion of the chancellor. McClain v. McClain, 152 Ky. 206 , 153 S.W. 234, 1913 Ky. LEXIS 634 ( Ky. 1913 ).

7.Redemption.

Where the land of the husband was sold to satisfy a mortgage lien, in which mortgage the wife joined, for less than two-thirds of the appraised value, and the husband died before the expiration of the period of redemption, the widow could redeem the land as provided for in KRS 426.530 and claim her dower in the surplus. Hiller v. Nelson, 118 S.W. 292, 1909 Ky. LEXIS 490 (Ky. Ct. App. 1909).

Cited:

Smallridge v. Hazlett, 112 Ky. 841 , 23 Ky. L. Rptr. 2228 , 66 S.W. 1043, 1902 Ky. LEXIS 237 ( Ky. 1902 ); Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ); United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ).

Research References and Practice Aids

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Northern Kentucky Law Review.

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

392.050. Rights of surviving spouse pending assignment of dower or curtesy.

The surviving spouse shall be entitled, from the time of the deceased spouse’s death until dower or curtesy is assigned, to such share of the rents and profits of the deceased spouse’s real estate as is equal to the surviving spouse’s share in the real estate itself, under KRS 392.020 , and the surviving spouse shall hold the dwelling house, yard, garden, the stable and lot on which it stands, and an orchard, if there is one, adjoining any of the premises aforesaid, until dower or curtesy is assigned, or, in case of renunciation, under KRS 392.080 .

History. 2138: amend. Acts 1956, ch. 117, § 4; 1974, ch. 386, § 79.

NOTES TO DECISIONS

1.Purpose.

One purpose of this section is to induce the heirs to arrange for the assignment of dower, thus the widow’s failure to ask for assignment of dower did not prejudice her right to income from the husband’s dowable realty. Frasure v. Martin, 247 S.W.2d 51, 1952 Ky. LEXIS 672 ( Ky. 1952 ).

2.Profits.

The word “profits” as used in this section means the net profits left after ordinary operating expenses have been paid. Wyly v. Kallenbach, 256 Ky. 391 , 76 S.W.2d 34, 1934 Ky. LEXIS 411 ( Ky. 1934 ).

3.Rent.

The widow is entitled to one-third of the gross rents without any deductions for taxes, insurance or repairs, pending the assignment of dower to her. Morton's Ex'rs v. Morton's Ex'r, 112 Ky. 706 , 66 S.W. 641, 23 Ky. L. Rptr. 2079 , 1902 Ky. LEXIS 213 ( Ky. 1902 ). See Redmond v. Redmond's Adm'x, 91 S.W. 260, 28 Ky. L. Rptr. 1176 , 1906 Ky. LEXIS 358 (Ky. Ct. App. 1906) (decisions prior to 1956 amendment).

Where the husband died owning real estate and no dower was allotted to the surviving wife during her lifetime and the land was sold subject to her dower interests, the personal representative of the wife could recover one-third of the rents from the death of her husband to her death. But if a reasonable rental had been paid her by the grantee during the period, the personal representative could not recover anything. Cain's Adm'r v. Kentucky & I. B. & R. Co., 124 Ky. 449 , 99 S.W. 297, 30 Ky. L. Rptr. 593 , 1907 Ky. LEXIS 196 ( Ky. 1907 ) (decision prior to 1956 amendment).

The right to rents under this section is a personal privilege given to a widow (now spouse) and cannot be assigned to another. Phillips v. Williams, 130 Ky. 773 , 113 S.W. 908, 1908 Ky. LEXIS 317 ( Ky. 1908 ), overruled, Consolidation Coal Co. v. Grayson, 186 Ky. 314 , 216 S.W. 848, 1919 Ky. LEXIS 212 ( Ky. 1919 ).

The widow is not entitled to rents on that portion of the land which she occupies. Clore's Adm'r v. Clore, 215 Ky. 532 , 284 S.W. 385, 1926 Ky. LEXIS 648 ( Ky. 1926 ).

Under this section the widow is entitled to one-third of the gross rents from the husband’s dowable realty, and the taxes and repair costs for the realty are charges against the estate. Frasure v. Martin, 247 S.W.2d 51, 1952 Ky. LEXIS 672 ( Ky. 1952 ) (decision prior to 1956 amendment).

4.Royalties.

Royalties collected from oil wells drilled upon the land of the husband during his lifetime, or pursuant to a valid contract entered into with the husband during his lifetime, are “rents.” Crain v. West, 191 Ky. 1 , 229 S.W. 51, 1921 Ky. LEXIS 260 ( Ky. 1 921).

Where the widow, for whom dower had not been assigned, joined with the heirs in leasing the land for oil production, she was entitled to one-third of the royalties paid or to have her dower allotted. In the assignment of her dower, every value should be considered in fixing the value of the land. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ) (decision prior to 1956 amendment).

Where the husband and wife executed a mining lease to mine coal on the husband’s land, and the mine was in operation at the time of his death, and dower had not been assigned to the wife, she was entitled to one-third of the royalties as rents and profits of her husband’s dowable real estate. The lease was not a sale and the wife was not entitled to one-half of the royalties as personalty. Williamson v. Williamson, 223 Ky. 589 , 4 S.W.2d 392, 1928 Ky. LEXIS 394 ( Ky. 1928 ) (decision prior to 1956 amendment).

The action of the widow to recover royalties is not an action for the assignment of dower, but an action which she may maintain even though no dower may have been assigned. Bartlett’s Adm’r v. Buckner’s Adm’r, 245 Ky. 645 , 54 S.W.2d 25, 1932 Ky. LEXIS 654 ( Ky. 1932 ); modified on other grounds, Bartlett v. Buckner's Adm'r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ).

Where the husband had leased gas rights and gas had been found in paying quantities, the widow was entitled absolutely to one-third royalties derived therefrom during her lifetime after the allotment of dower in the surface rights of the real estate. Cook v. Cook's Adm'r, 261 Ky. 501 , 88 S.W.2d 27, 1935 Ky. LEXIS 686 ( Ky. 1935 ) (decision prior to 1956 amendment).

5.Lease of Widow’s Interest.

Dower may be allotted to the widow by mutual agreement between her and the heirs; in such an event, she may lease her interest to a stranger. Meredith v. Meredith, 193 Ky. 192 , 235 S.W. 757, 1921 Ky. LEXIS 229 ( Ky. 192 1).

6.Free Rent.

Where the widow did not live with her husband on residential property at the time of his death, she was not entitled to hold the property rent free under this section. Frasure v. Martin, 247 S.W.2d 51, 1952 Ky. LEXIS 672 ( Ky. 1952 ).

7.Right of Quarantine.

This section definitely fixes the widow’s right of quarantine. Beach v. Hopperton's Ex'r, 303 Ky. 272 , 196 S.W.2d 894, 1946 Ky. LEXIS 789 ( Ky. 1946 ).

Failure of the surviving spouse to ask for allotment of his interest under KRS 392.020 does not affect his right under this section to quarantine. Johnson v. Ducobu, 251 S.W.2d 992, 1952 Ky. LEXIS 954 ( Ky. 1952 ).

The surviving husband is entitled to the privilege of quarantine. Johnson v. Ducobu, 251 S.W.2d 992, 1952 Ky. LEXIS 954 ( Ky. 1952 ).

8.Tenant by Will.

The widow who continues to live in the home after the death of her husband under this section is a tenant by will until dower is assigned. Jordan v. Sheridan, 149 Ky. 783 , 149 S.W. 1028, 1912 Ky. LEXIS 719 ( Ky. 1912 ).

9.Effect of Mortgage.

When the wife joins her husband in a mortgage on his land she only gives up her dower rights insofar as they are covered by the mortgage, if the mortgage does not cover rents and profits, she is entitled to such rents and profits, after the death of her husband, as given by this section, until divested thereof by legal proceedings. Mayfield v. Wright, 107 Ky. 530 , 54 S.W. 864, 21 Ky. L. Rptr. 1255 , 1900 Ky. LEXIS 136 ( Ky. 1900 ).

Cited:

Consolidation Coal Co. v. Grayson, 186 Ky. 314 , 216 S.W. 848, 1919 Ky. LEXIS 212 ( Ky. 1919 ); Oster’s Ex’r v. Ohlman, 187 Ky. 341 , 219 S.W. 187, 1920 Ky. LEXIS 125 ( Ky. 1920 ); Clore’s Adm’r v. Clore, 215 Ky. 532 , 284 S.W. 385, 1926 Ky. LEXIS 648 ( Ky. 1926 ); Bartlett v. Buckner’s Adm’r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ); Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ); Logan v. Logan, 296 S.W.2d 479, 1956 Ky. LEXIS 212 ( Ky. 1956 ); Hall v. Hall, 328 S.W.2d 541, 1959 Ky. LEXIS 129 ( Ky. 1959 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Petrilli, Kentucky Family Law, Property Rights, § 14.3.

392.060. Dower need not be allotted from all parcels.

Where the lands are not severally held by different devisees or purchasers, dower need not be assigned out of each separate portion, but an equitable allotment may be made in one (1) or more parcels in lieu of the whole.

History. 2141.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section was to change the common-law rule that dower had to be assigned out of each parcel of land. Smith v. American Tobacco Co., 149 Ky. 591 , 149 S.W. 927, 1912 Ky. LEXIS 671 ( Ky. 1912 ).

The purpose of this section was to prevent circuity of action. Smith v. American Tobacco Co., 149 Ky. 591 , 149 S.W. 927, 1912 Ky. LEXIS 671 ( Ky. 1912 ).

2.Application.

This section is applicable if the lands of a decedent are held by only one devisee or purchaser. Dougherty v. United States, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. Ky. 1961 ).

3.Multiple Devisees or Purchasers.

If the lands of the decedent are held by more than one devisee or purchaser, the widow must take her dower out of each tract. Dougherty v. United States, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. Ky. 1961 ).

4.Part of Land Sold.

Where the husband sold 100 acres off of his 400 acre tract of land, the widow should be assigned her dower out of the 300 acre tract as she could be fully endowed out of it and it was to her benefit to be so endowed and no hardship was caused anyone thereby. Morgan v. Conn, 66 Ky. 58 , 1867 Ky. LEXIS 123 ( Ky. 1867 ) (decided under prior law). See Lawson v. Morton, 36 Ky. 471 , 1838 Ky. LEXIS 88 ( Ky. 1838 ) (decided under prior law).

Where the husband owned two tracts of land and sold one of them by general warranty deed and died possessed of the unsold tract, the widow must accept her entire dower out of the unsold tract if there was sufficient land to provide dower for her. Richmond v. Harris, 102 Ky. 389 , 43 S.W. 703, 19 Ky. L. Rptr. 1443 , 1897 Ky. LEXIS 132 ( Ky. 1897 ).

Where the wife does not join in the deed and the husband sells the land without warranty and dies owning other land the widow cannot be required to take her dower out of the land falling to the heirs, but should be assigned her dower separately out of the land that was sold and the land that descended to the heirs. Smith v. American Tobacco Co., 149 Ky. 591 , 149 S.W. 927, 1912 Ky. LEXIS 671 ( Ky. 1912 ).

Where husband had title to land placed in son’s name, to secure loan from son, and prior to husband’s death a part of the land was sold to an innocent purchaser without the wife’s jointure, the wife was entitled to an allotment of equivalent dower in other real estate. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Procedure for allotment of dower, KRS 381.135 .

392.070. Recovery of dower or curtesy from heir, devisee or purchaser — Value of — Rents.

When a surviving spouse recovers dower or curtesy against the heir or devisee or purchaser from the decedent, the dower or curtesy shall be according to the value of the estate when received by the heir, devisee or purchaser, and shall not include, in the estimated value, any permanent improvements which the heir, devisee or purchaser has made on the land. Against the heir or devisee or his alienee the surviving spouse’s claim for rent shall not exceed rent for five (5) years before the action, and against a purchaser from the decedent the surviving spouse’s claim shall be only from the commencement of the action. In either case it shall continue up to final recovery. If, after action has been brought, the surviving spouse or tenant dies before recovery, the rent may be recovered by the surviving spouse’s representative or against the tenant’s heirs, devisees and representatives.

History. 2139: amend. Acts 1974, ch. 386, § 80.

NOTES TO DECISIONS

1.Value.

When a gross sum in lieu of dower has been allotted the widow it should be based upon the value of the land at the time it was transferred to the purchaser by her husband. Hogg v. Hensley, 100 Ky. 719 , 39 S.W. 247, 19 Ky. L. Rptr. 44 , 1897 Ky. LEXIS 47 ( Ky. 1897 ).

In allotting dower in land sold by the husband during coverture, the allotment should be made with reference to the value at the time of the sale by the husband without reference to improvements made by the purchaser. Ewell v. Tye, 76 S.W. 875, 25 Ky. L. Rptr. 976 , 1903 Ky. LEXIS 297 (Ky. Ct. App. 1903).

2.Improvements.

Oil wells are not improvements within the purview of this section. Bartlett v. Buckner's Adm'r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ).

3.Rents.

The widow is entitled to rents against the purchaser of the husband from the time she commences her action. Yancy v. Smith, 59 Ky. 408 , 1859 Ky. LEXIS 126 ( Ky. 1859 ).

4.Interest.

The widow is entitled to interest upon a gross sum in lieu of dower from the time that she filed her suit therefor. Hogg v. Hensley, 100 Ky. 719 , 39 S.W. 247, 19 Ky. L. Rptr. 44 , 1897 Ky. LEXIS 47 ( Ky. 1897 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse against Decedent Spouse’s Devisees or Heirs, Form 254.06.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Commissioners, Form 254.11.

392.080. Surviving spouse may renounce will — Form to use when renouncing will — Share of the surviving spouse in such case — When devise or bequest is in addition to dower or curtesy.

    1. When a husband or wife dies testate, the surviving spouse may, though under full age, release what is given to him or her by will, if any, and receive his or her share under KRS 392.020 as if no will had been made, except that in such case the share in any real estate of which the decedent or anyone for the use of the decedent was seized of an estate in fee simple at the time of death shall be only one-third (1/3) of such real estate. Such relinquishment shall be acknowledged before an officer authorized to administer oaths under the laws of this state and evidenced by the officer’s certificate. The relinquishment and certificate shall be in substantially the following form: (1) (a) When a husband or wife dies testate, the surviving spouse may, though under full age, release what is given to him or her by will, if any, and receive his or her share under KRS 392.020 as if no will had been made, except that in such case the share in any real estate of which the decedent or anyone for the use of the decedent was seized of an estate in fee simple at the time of death shall be only one-third (1/3) of such real estate. Such relinquishment shall be acknowledged before an officer authorized to administer oaths under the laws of this state and evidenced by the officer’s certificate. The relinquishment and certificate shall be in substantially the following form:
    2. To be effective, such relinquishment and certificate shall be filed both with the clerk of the court which admitted the will of the deceased spouse to probate and the county clerk of the county where the will of the deceased spouse was admitted to probate, within six (6) months after the admission of the will to probate. If, within those six (6) months, an action contesting the will is brought, the surviving spouse need not make such relinquishment until within six (6) months succeeding the time when the action is disposed of. Provided, however, the period for renunciation may be extended not exceeding six (6) additional months by order entered by the district court upon application of the surviving spouse for such extension within six (6) months after the date of probate.
    I, _____________________________________________________________________ , am the surviving spouse of _____________________________________________________________________ . Except as provided in KRS 392.080 (2), I hereby release what is given to me by the will of my said deceased spouse. I understand I will now receive the share to which I am entitled pursuant to KRS 392.080 . _____________________________________________________________________ Surviving Spouse THE STATE OF _____________________________________________________________________ COUNTY OF _____________________________________________________________________ Subscribed to and acknowledged before me by _____________________________________________________________________ , the surviving spouse of _____________________________________________________________________ , this _______________________________________ day of _______________________________________ . _____________________________________________________________________ (Officer’s signature and capacity)
  1. Subsection (1) does not preclude the surviving spouse from receiving his or her share under KRS 392.020 , in addition to any bequest or devise to him or her by will, if such is the intention of the testator, plainly expressed in the will or necessarily inferable from the will.

History. 1404: amend. Acts 1956, ch. 117, § 3; 1972, ch. 168, § 7; 1976 (Ex. Sess.), ch. 14, § 352, effective January 2, 1978; 1978, ch. 384, § 513, effective June 17, 1978; 2010, ch. 21, § 10, effective July 15, 2010.

NOTES TO DECISIONS

1.Renunciation of Will.

A renunciation of the husband’s will, by the widow, upon the condition that she dies within a three-month period, is valid where she dies within the three-month period. McCallister v. Brand's Heirs, 50 Ky. 370 , 1850 Ky. LEXIS 71 ( Ky. 1850 ) (decided under prior law).

Where the husband, during his lifetime, conveyed property in trust for the use and benefit of his wife, and then died testate, she could renounce the provisions of the will and claim her dower and distributable share of his estate. Worsley's Ex'r v. Worsley, 55 Ky. 455 , 1855 Ky. LEXIS 63 ( Ky. 1855 ) (decided under prior law).

The interest of a widow can be neither increased nor diminished by the will and a widow who renounces the will of her deceased husband has no right to have land, directed by the will to be sold and the proceeds of the sale distributed, treated as personalty, and distributed. Barnett's Adm'r v. Barnett's Adm'r, 58 Ky. 254 , 1858 Ky. LEXIS 45 ( Ky. 1858 ) (decided under prior law).

A widow is not entitled to her dower rights unless she renounces her deceased husband’s will even though the amount she would receive under the will would not be equal to the value of her dower and distributable share. Bayes v. Howes, 113 Ky. 465 , 68 S.W. 449, 24 Ky. L. Rptr. 281 , 1902 Ky. LEXIS 71 ( Ky. 1902 ).

When a widow renounces her husband’s will she is in the same position as if the will had never been executed and probated and she cannot appeal from an order probating the will having no further interest in the will. Thompson v. Thompson, 134 Ky. 757 , 121 S.W. 641, 1907 Ky. LEXIS 347 ( Ky. 1907 ).

The rule requiring the widow to elect whether to take under the will of her deceased husband or under KRS 392.020 appertains only to property that may be the subject of a devise. Landers v. Landers, 151 Ky. 206 , 151 S.W. 386, 1912 Ky. LEXIS 774 ( Ky. 1912 ).

When the widow renounces the will of her husband it is just the same as if no will had been made and relates back to the time of her husband’s death. Franzell's Ex'r v. Franzell, 153 Ky. 171 , 154 S.W. 912, 1913 Ky. LEXIS 790 ( Ky. 1913 ).

Renunciation of will by widow makes unnecessary construction of clause devising property to her. Crawford v. Crawford, 290 Ky. 542 , 162 S.W.2d 4, 1942 Ky. LEXIS 445 ( Ky. 1942 ).

Distributable share of husband or wife may not be divested by will of deceased spouse, if renunciation is made. Truitt v. Truitt's Adm'r, 290 Ky. 632 , 162 S.W.2d 31, 1942 Ky. LEXIS 454 ( Ky. 1942 ).

Husband cannot, by will, defeat widow’s dower right, since widow may renounce the will. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Where a spouse dies testate, the surviving spouse takes nothing under KRS 392.020 , except as provided by this section in the event of renunciation. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

A husband is precluded not only from making gifts during his lifetime to defeat the dower interests of his wife, but he is also prohibited from disposing of his property by will to defeat dower because, in such a case, the widow can renounce the will and take her interest as provided by KRS 392.020 . Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

If a surviving spouse is not satisfied with the provisions under the will, this section permits the surviving spouse to renounce the will of the deceased spouse, and to receive as her portion of the estate her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

If the surviving spouse fails to renounce the will, she loses her right to dower. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Although two spouses had executed mutual wills and a will contract “not to revoke or change their respective wills,” the surviving spouse could, upon the death of her husband, renounce her late husband’s will and claim her share as if he had died intestate because the will contract addressed revoking and changing the parties’ respective wills and was silent as to renouncing the decedent’s will. Bauer v. Piercy, 912 S.W.2d 457, 1995 Ky. App. LEXIS 213 (Ky. Ct. App. 1995).

Appellate court found that a husband’s lack of compliance with KRS 392.080 invalidated his attempted renunciation of his late wife’s will. Bagby v. Koch, 98 S.W.3d 521, 2002 Ky. App. LEXIS 1919 (Ky. Ct. App. 2002).

2.— Time Limit.

Where the condition of the deceased husband’s estate is such that the widow cannot make an intelligent choice as to whether to take under the will or to renounce its provisions, the chancellor should postpone the election to such time as will permit her to make an intelligent choice, even beyond the 12-month (now six-month) period. Smither v. Smither's Ex'r, 72 Ky. 230 , 1872 Ky. LEXIS 37 ( Ky. 1872 ) (decided under prior law).

The widow must renounce the will within 12 (now six) months of its probate, if she has not renounced within that time, she takes as a legatee under the will. Bayes v. Howes, 113 Ky. 465 , 68 S.W. 449, 24 Ky. L. Rptr. 281 , 1902 Ky. LEXIS 71 ( Ky. 1902 ).

The will must be renounced by the widow within the 12-month (now six-month) period and ignorance of the law is no excuse. Logsdon v. Haney, 74 S.W. 1073, 25 Ky. L. Rptr. 245 (1903).

A renunciation of a will executed by a widow is valid even though it is not filed with the clerk until after the death of the widow, if it is filed within the 12-month (now six-month) period. Georgetown Nat'l Bank v. Ford, 215 Ky. 472 , 285 S.W. 218, 1926 Ky. LEXIS 741 ( Ky. 1926 ). See McCallister v. Brand's Heirs, 50 Ky. 370 , 1850 Ky. LEXIS 71 ( Ky. 1850 ).

Court did not err in allowing widow an extension of time within which to elect whether she would take under her husband’s will since she was a party defendant in a suit asking for settlement of her husband’s estate and the condition of estate was such that an intelligent choice could not be made within the prescribed time. Brewer's Ex'r v. Smith, 242 Ky. 175 , 45 S.W.2d 1036, 1932 Ky. LEXIS 234 ( Ky. 1932 ).

A widow’s failure to renounce will within 12-month (now six-month) statutory period after probation was equivalent to a declaration of election to take under the will and was as binding as a renunciation would have been, if made. Moise v. Moise's Ex'r, 302 Ky. 843 , 196 S.W.2d 607, 1946 Ky. LEXIS 764 ( Ky. 1946 ).

Court was without power to grant testator’s widow additional time to determine whether or not she wished to renounce will, after the expiration of the 12-month (now six-month) statutory period, where application therefore was not made within the 12-month period prescribed for the election. Moise v. Moise's Ex'r, 302 Ky. 843 , 196 S.W.2d 607, 1946 Ky. LEXIS 764 ( Ky. 1946 ).

Where an intelligent election by the surviving spouse is not possible within one year (now six months) after the probate of a will, the chancellor may extend the time for such election on motion made before expiration of the one-year period. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

Action of surviving spouse challenging will of deceased husband was properly dismissed where her renunciation was filed more than 12 months after the probate of the will. Harlow v. Harlow, 551 S.W.2d 230, 1977 Ky. LEXIS 461 ( Ky. 1977 ).

Where a husband failed to make a timely renunciation of a decedent’s will in the manner required by KRS 392.080(1), the Circuit Court correctly ruled that the husband’s claim to a surviving spouse’s elective share of the decedent’s estate was barred. Henderson v. Thomas, 129 S.W.3d 853, 2004 Ky. App. LEXIS 56 (Ky. Ct. App. 2004).

3.— Acknowledgment.

This section, requiring the acknowledgment of a renunciation of a will before the clerk, was substantially complied with by the subscription of the signature to the document in the presence of the clerk under oath. Hackworth v. Flinchum, 475 S.W.2d 140, 1971 Ky. LEXIS 65 ( Ky. 1971 ).

4.— Withdrawal Of.

A widow who renounces the will of her husband and elects to relinquish the bequests made to her and take her statutory share can thereafter withdraw the renunciation and election and take the bequests made in the will only with the consent of a court of equity in a proper case and upon proper showing. Craven v. Craven, 181 Ky. 428 , 205 S.W. 406, 1918 Ky. LEXIS 541 ( Ky. 1918 ).

5.— Effect on Devisees and Legatees.

When the widow renounces the will and thereby relinquishes devises or bequests made to her, those devises and bequests should be used to make whole those devisees or legatees whom her renunciation disappoints. Ruh's Ex'rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ).

When a widow renounces the will of her husband it renders the will inoperative only as to the widow. The will remains in effect as to other devisees and legatees named therein and should be carried out as far as possible. Ruh's Ex'rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ).

Where testator left estate to wife for her life with remainder over, the remainder estate was precipitated when wife renounced the will. Farmers Bank & Capital Trust Co. v. Morgan, 308 Ky. 748 , 215 S.W.2d 842, 1948 Ky. LEXIS 1030 ( Ky. 1948 ).

6.— Insane Widow.

An affidavit renouncing the will filed by the committee of a widow who is insane is sufficient, and the court should, and has the power to, renounce the will for her if it is to her advantage to do so. Miller v. Keown, 176 Ky. 117 , 195 S.W. 430, 1917 Ky. LEXIS 28 ( Ky. 1917 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ).

An insane widow may ask the court to make an election for her as to whether she should take under the will, and the court may do so. Ramsey's Ex'r v. Ramsey, 243 Ky. 202 , 47 S.W.2d 1059, 1932 Ky. LEXIS 73 ( Ky. 1932 ).

7.— Multiple Wills.

The renunciation of the provisions of one will does not prevent the widow from claiming under a previous will. Murphy's Ex'r v. Murphy, 65 S.W. 165, 23 Ky. L. Rptr. 1460 , 1901 Ky. LEXIS 372 (Ky. Ct. App. 1901).

Where married woman made two wills, the first leaving all her property to her husband, and the later one leaving all her property to her nieces, the husband’s renunciation of the later will did not preclude him from contesting the probate of that will and seeking to have the first will probated. Smith v. Ridner, 293 Ky. 66 , 168 S.W.2d 559, 1943 Ky. LEXIS 571 ( Ky. 1943 ).

8.— Property in Other States.

Where a decedent resident in Kentucky has property in another state, the widow’s election in Kentucky whether or not to take under the will is binding upon her as to the property located in the other state. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

9.— Effect on Power of Trustee.

The renunciation of the will by the widow has no effect upon the power given by the will to trustee to sell real estate. Wachs v. Security Trust Co., 287 Ky. 303 , 152 S.W.2d 969, 1941 Ky. LEXIS 537 ( Ky. 1941 ).

10.— Ignorance of Rights.

Where the widow is ignorant of her rights under this section and signs a paper releasing those rights and electing to take a child’s share, the court will set aside the writing and it will not be construed as a relinquishment of her dower and distributable rights. Evans' Adm'r v. Evans, 74 S.W. 224, 24 Ky. L. Rptr. 2412 , 24 Ky. L. Rptr. 2421 , 1903 Ky. LEXIS 500 (Ky. Ct. App. 1903).

11.— Estoppel.

The appointment of the widow as administratrix with the will annexed and her undertaking to execute the instrument does not estop her from renouncing the provisions of the will within the 12-month (now six-month) period where she has converted none of the devise to her own use. Smith's Adm'r v. Smith, 13 Ky. Op. 124, 1884 Ky. LEXIS 160 (Ky. Ct. App. Dec. 4, 1884) (decided under prior law).

The widow who accepts a part of the personal property of her deceased husband given to her by his will on the date of appraisement is not thereby estopped from later renouncing the will as such acceptance is not an election to take under the will. Brown's Ex'r v. Brown, 58 S.W. 993, 22 Ky. L. Rptr. 840 , 1900 Ky. LEXIS 718 ( Ky. 1900 ).

A widow who executes a writing agreeing to take under the will may nevertheless renounce the will within the 12-month (now six-month) period. But, under these circumstances, she cannot renounce the will to the prejudice of the personal representative whom she may have misled. Williams v. Williams, 161 Ky. 55 , 170 S.W. 490, 1914 Ky. LEXIS 7 ( Ky. 1914 ).

The widow by qualifying as executrix or trustee under the will does not relinquish her right to renounce the will and she may continue as executrix or trustee after renouncing the will. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

12.— Spousal Exemption.

A surviving spouse who renounces the decedent’s will is not entitled to the $7500 spousal exemption allowed by KRS 391.030 . Brown v. Sammons, 743 S.W.2d 23, 1988 Ky. LEXIS 7 ( Ky. 1988 ).

13.— Will Prior to Marriage.

Where the husband made his will before marriage and it contained no provision for the wife, she need not renounce it. She had her rights as if the husband had died intestate. Loughborough's Ex'r v. Loughborough's Dev., 53 Ky. 549 ( Ky. 1854 ) (decided under prior law).

14.Acceptance of Will.

The widow who does not renounce the provisions of the will takes the devises subject to a charge made in the will in favor of another. Huhlien v. Huhlien, 87 Ky. 247 , 8 S.W. 260 ( Ky. 1888 ) (decided under prior law).

A widow who accepts the devise and bequest made to her in her deceased husband’s will is not entitled to dower in undevised real estate. Smith v. Perkins, 148 Ky. 387 , 146 S.W. 758, 1912 Ky. LEXIS 446 ( Ky. 1912 ).

Widow who accepts under husband’s will thereby surrenders her right to claim dower in land which her husband sold during the coverture by deeds in which she did not join. Perry v. Wilson, 183 Ky. 155 , 208 S.W. 776, 1919 Ky. LEXIS 451 ( Ky. 1919 ).

A widow accepting the benefits of the will cannot claim any right against the estate inconsistent therewith, and her devise is, like all others, chargeable with its proportionate share of the debts and cost of administration if the undevised estate be not sufficient therefor. Maynard's Adm'r v. Maynard, 285 Ky. 75 , 146 S.W.2d 343, 1940 Ky. LEXIS 597 ( Ky. 1940 ).

Where will gave wife a small tract of land, with a store and its merchandise located thereon, and the wife did not renounce the will, she was not entitled to share in other property as to which the husband died intestate. Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ).

A widow who accepts devise or bequest under her husband’s will cannot claim the rights of a surviving spouse in any undevised property of the husband. Hammond v. McReady, 355 S.W.2d 674, 1962 Ky. LEXIS 77 ( Ky. 1962 ).

In the absence of a contrary intent affirmatively appearing in the will, a widow who accepts a devise or bequest under her husband’s will cannot claim the rights of a surviving spouse in any undevised property of the husband. Rhodus v. Proctor, 433 S.W.2d 625, 1968 Ky. LEXIS 278 ( Ky. 1968 ).

Where plaintiff/spouse did not renounce the will as required by this section and instead, she probated the will and accepted and received the benefits of the will, by doing this she lost her right to her dower interest, and took as any other devisee; because she had no dower interest, she had no standing to assert her claim that a fraudulent transfer was made to defeat her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

15.Presumption that Devise Is in Lieu of Dower.

Where the husband by will gives all his property to his wife subject to the payment of his debts, it does not manifest an intent that she is to have dower rights in addition to the rights conferred by the will even though there is sufficient personal property to pay the debts. Schuette v. Bowers, 40 F.2d 208, 1930 U.S. App. LEXIS 3134 (2d Cir. N.Y. 1930), limited, Wilson v. Bowers, 57 F.2d 682, 1932 U.S. App. LEXIS 4052 (2d Cir. N.Y. 1932).

Under this section, the legal presumption is that a devise to the wife is in lieu of dower and she is compelled to elect between the two, unless a contrary intent is plainly expressed in the will or necessarily inferable therefrom. Voss v. Stortz, 177 Ky. 541 , 197 S.W. 964, 1917 Ky. LEXIS 619 ( Ky. 1917 ).

Under this section the legal presumption is that a devise to the widow is in lieu of dower and she is compelled to elect between the two, unless a contrary intention is plainly expressed in the will or necessarily inferable therefrom. Wilson v. Fisher, 298 Ky. 790 , 184 S.W.2d 104, 1944 Ky. LEXIS 1002 ( Ky. 1944 ).

Where a husband makes a provision for his wife in his will, it will be presumed that such devise was in lieu of the interest given her by KRS 392.020 , unless a contrary intention appears from the will or is necessarily inferable. Morguelan v. Morguelan's Ex'r, 307 Ky. 94 , 209 S.W.2d 824, 1948 Ky. LEXIS 686 ( Ky. 1948 ).

16.— Contrary Intent of Will.

Where one clause of husband’s will devised certain real estate to widow, and residuary clause devised remainder of husband’s estate “to those persons entitled to receive the same under the laws of the State of Kentucky,” the widow could claim her dower rights in the residuary estate, in addition to the real estate specifically devised to her, since the direction of the testator that the residue go to those persons entitled to the same under the law constituted a plain expression of the intention of the testator, within the meaning of subsection (2) of this section, that the widow should have her dower in addition to the specific devise. Wilson v. Fisher, 298 Ky. 790 , 184 S.W.2d 104, 1944 Ky. LEXIS 1002 ( Ky. 1944 ).

17.Subscribing Witness.

The words “subscribing witness” as used in this section refer to any person who witnesses the renunciation and subscribes his name thereto. Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ).

18.Fraudulent Transfer of Property.

The estate cannot bring an action to rescind a transfer that was made with the intent to deprive the wife of her dower interest; only the widow individually had such right. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Where the surviving spouse did not renounce the will and instead probated the will and accepted benefits under it, she had no standing to assert that transfers of assets before the death of the decedent were fraudulent attempts to defeat her dower. Sanders v. Pierce, 979 S.W.2d 457, 1998 Ky. App. LEXIS 54 (Ky. Ct. App. 1998).

Court of appeals properly ruled that a surviving husband's statutory spousal interest did not attach to life insurance proceeds because they were never part of the decedent's estate since the decedent retained an absolute right to change the beneficiary; the decedent's decision to exercise the right to change the beneficiary could not be fraud on the husband's statutory interest because she never owned the proceeds of the insurance policies, and thus, they never become part of her estate. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

Life-insurance beneficiary has only a contingent interest in the benefits of the policy, and where the insured retains the right to change the beneficiary, that right is virtually absolute; where a dying spouse exercises that right to remove the surviving spouse as a named beneficiary and instead names a trust for the benefit of the minor child of the marriage, the surviving spouse cannot claim fraud on his or her statutory spousal interest. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

Cited:

Trustees of Church Home v. Morris, 99 Ky. 317 , 18 Ky. L. Rptr. 384 , 36 S.W. 2, 1896 Ky. LEXIS 97 ( Ky. 1896 ); Cochran’s Ex’x v. Commonwealth, 241 Ky. 656 , 44 S.W.2d 603, 1931 Ky. LEXIS 147 , 78 A.L.R. 710 ( Ky. 1931 ); Ruh’s Ex’rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ); Baldwin’s Coex’rs v. Curry, 272 Ky. 827 , 115 S.W.2d 333, 1938 Ky. LEXIS 204 ( Ky. 1938 ); Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ); Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ); Dougherty v. United States, 175 F. Supp. 339, 1959 U.S. Dist. LEXIS 2948 (E.D. Ky. 1959 ); Richie v. Richie, 476 S.W.2d 190, 1972 Ky. LEXIS 380 ( Ky. 1972 ); Holtzclaw v. Arneau, 638 S.W.2d 704, 1982 Ky. LEXIS 294 ( Ky. 1982 ); McElroy v. Taylor, 977 S.W.2d 929, 1998 Ky. LEXIS 131 ( Ky. 1998 ); Cave v. O’Bryan, — S.W.3d —, 2004 Ky. App. LEXIS 105 (Ky. Ct. App. 2004).

Opinions of Attorney General.

The terms of a will would be applicable as to the distribution of an estate unless there is a renunciation of the will pursuant to this section, which would make the $3,500 (now $15,000) exemption provisions of KRS 391.030 applicable. OAG 73-477 (opinion prior to 1974 amendment of KRS 391.030 ).

Exempt property under KRS 391.030 should not be charged against the one-half of the surplus personalty distributable under KRS 392.020 when the surviving spouse had renounced the will under this section, since former subsection (4) of KRS 391.030 specifically allowed the $3500 (now $15,000) personalty exemption for a surviving spouse who had renounced a will under this section, and, were that $3500 to be considered as a set-off against the surplus under KRS 392.020 , there would in fact have been no exemption; accordingly, if, after payment of the subject $3500, and the debts and expenses, there remained any personalty for further distribution, the surviving spouse was entitled to “an absolute estate in one-half” of any such surplus in accord with KRS 392.020. OAG 81-256 . (opinion prior to 1982 amendments of KRS 391.030)

Research References and Practice Aids

Kentucky Law Journal.

Evans, Concerted Wills — A Possible Device for Avoiding the Widows Privilege of Renunciation, 33 Ky. L.J. 79 (1945).

Funk, Trusts — Will the Creation of a Trust Defeat a Spouse’s Statutory Allowances?, 34 Ky. L.J. 296 (1946).

Daugherty, Acceleration of Contingent Remainders upon the Widow’s Renunciation, 38 Ky. L.J. 291 (1950).

Bensing, Inter Vivos Trusts and the Election Right of a Surviving Spouse, 42 Ky. L.J. 616 (1954).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Claiming Specific Enforcement of Contract to Make a Will Would be Inequitable to Widow, Form 214.05.

Caldwell’s Kentucky Form Book, 5th Ed., Motion and Order for Extension of Time in which to Renounce, Form 230.12.

Caldwell’s Kentucky Form Book, 5th Ed., Order Filing Renunciation of Will (Another Form), Form 254.18.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for County Clerks, § 14.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Wills, § 230.00.

Caldwell’s Kentucky Form Book, 5th Ed., Surviving Spouse’s Renunciation of Will, Form 230.12.

Caldwell’s Kentucky Form Book, 5th Ed., Surviving Spouse’s Renunciation of Will, Form 254.16.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.6.

392.090. All property claims barred by divorce or adultery.

  1. Absolute divorce bars all claim of either husband or wife to the property, real and personal, of the other after his or her decease.
  2. If either spouse voluntarily leaves the other and lives in adultery, the offending party forfeits all right and interest in and to the property and estate of the other, unless they afterward become reconciled and live together as husband and wife.

History. 2133, 2144.

NOTES TO DECISIONS

1.Application.

Subsection (2) of this section is not applicable to a fund recovered for the wrongful death of the husband under KRS 411.130 . Napier's Adm'r v. Napier's Adm'r, 210 Ky. 163 , 275 S.W. 379, 1925 Ky. LEXIS 642 ( Ky. 1925 ).

This section does not apply to a legacy or devise made by one spouse to the other in a will. Baldwin v. Cook, 232 Ky. 365 , 23 S.W.2d 601, 1930 Ky. LEXIS 10 ( Ky. 1930 ).

2.Absolute Divorce.

An absolute divorce bars the claim of the wife to dower in land which the husband sold during coverture by deed in which she did not join. McKean v. Brown, 83 Ky. 208 , 7 Ky. L. Rptr. 183 , 1885 Ky. LEXIS 57 (Ky. Ct. App. 1885) (decided under prior law).

This section makes an absolute divorce a bar to every kind of a claim by one of the divorced parties in the property of the other after his or her death. Bromley v. McCall, 174 Ky. 415 , 192 S.W. 507, 1917 Ky. LEXIS 201 ( Ky. 1917 ).

3.Abandonment.

Abandonment, even though permanent, does not bar the claim of the wife against the estate of the deceased husband for dower. Only absolute divorce is covered by this section. Meyers' Adm'r v. Meyers, 244 Ky. 248 , 50 S.W.2d 81, 1932 Ky. LEXIS 392 ( Ky. 1932 ).

4.Adultery.

Under this section the adultery need not consist of a constant living in the state of adultery, but only of a periodic commission of the offense. Bond v. Bond's Adm'r, 150 Ky. 389 , 150 S.W. 363, 1912 Ky. LEXIS 890 ( Ky. 1912 ).

It is not essential to defeat the widow’s right to dower that she voluntarily leave her husband and live in adultery, but she may, by her adulterous conduct, while living with her husband, forfeit her right to dower. Ferguson v. Ferguson, 153 Ky. 742 , 156 S.W. 413, 1913 Ky. LEXIS 921 ( Ky. 1913 ). See Sergent v. North Cumberland Mfg. Co., 112 Ky. 888 , 66 S.W. 1036, 23 Ky. L. Rptr. 2226 , 1902 Ky. LEXIS 236 ( Ky. 1902 ).

Under KRS 392.090(2), the phrase “lives in adultery” required a showing of more than one instance of adultery, and it had be recurring, a sustained or notorious activity. Because proof showed wife engaged in adultery only once before husband’s death, statutory requirement was not met and she was not barred from interest in husband’s estate. Griffin v. Rice, 381 S.W.3d 198, 2012 Ky. LEXIS 143 ( Ky. 2012 ).

5.— Preemption By Federal Law.

Subsection (2) of this section was preempted by federal law (ERISA) which provided that benefits of deferred profit sharing plan would automatically go to spouse of employee unless such spouse consented in a notarized writing to someone else other than the spouse being named as beneficiary of the plan. Moore v. Philip Morris Cos., 8 F.3d 335, 1993 U.S. App. LEXIS 26601 (6th Cir. Ky. 1993 ).

6.Life Insurance.

Where the wife takes out a policy of life insurance upon the life of her husband and then voluntarily abandons him and lives in adultery with another, she does not thereby forfeit her right to the sum due upon the policy at the death of her husband. Bradley v. Bradley's Adm'r, 178 Ky. 239 , 198 S.W. 905, 1917 Ky. LEXIS 720 ( Ky. 1917 ).

This section would not apply to divest an ex-wife of her interest as beneficiary of her ex-husband’s life insurance policy. Ping v. Denton, 562 S.W.2d 314, 1978 Ky. LEXIS 326 ( Ky. 1978 ).

7.Homestead Rights.

A divorce extinguishes all right of the wife to homestead, therefore, a divorced wife cannot claim a homestead for herself and infant child in a tract of land mortgaged by the husband, upon the ground that she did not unite in the mortgage and that the husband refuses to claim the exemption. Skinner v. Walker, 98 Ky. 729 , 34 S.W. 233, 17 Ky. L. Rptr. 1286 , 1896 Ky. LEXIS 27 ( Ky. 1896 ).

Cited:

Sapp v. Sapp, 301 Ky. 849 , 193 S.W.2d 443, 1946 Ky. LEXIS 580 ( Ky. 1946 ); United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ).

Research References and Practice Aids

Cross-References.

Divorce from bed and board does not bar dower, KRS 403.050 .

Kentucky Law Journal.

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky?, 66 Ky. L.J. 889 (1977-1978).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Hill, No-Fault Death: Wedding Inheritance Rights to Family Values., 94 Ky. L.J. 319 (2005/2006).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.5, 24.22.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

392.100. Dower or curtesy rights in event of bigamy.

If a person violates KRS 530.010 the person’s first spouse shall, on his conviction, be endowed of one-third (1/3) part of his real estate for life and an absolute interest in one-third (1/3) part of his other estate, to be allotted and recovered as dower or curtesy in other cases. A violator of KRS 530.010 shall forfeit her claim to dower or his claim to curtesy in their first spouse’s estate.

History. 1217: amend. Acts 1974, ch. 386, § 81; 1974, ch. 406, § 313, effective January 1, 1975.

Legislative Research Commission Note.

This section was amended by two 1974 acts which do not appear to be in conflict and have been compiled together.

Research References and Practice Aids

Cross-References.

Bigamous marriage is void, KRS 402.020 .

Bigamy under Penal Code, KRS 530.010 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

392.110. Default or collusive judgment no bar to dower or curtesy — Collusive assignment does not bind heir.

  1. The surviving spouse shall not be barred of dower or curtesy by reason of any judgment rendered by default or collusion against the decedent, if the surviving spouse would be entitled to dower or curtesy had there been no such judgment.
  2. No heir shall be bound by any collusive or ex parte assignment of dower or curtesy to the surviving spouse, except so far as the surviving spouse shows himself to have been justly entitled to the dower or curtesy.

History. 2140: amend. Acts 1974, ch. 386, § 82.

NOTES TO DECISIONS

1.Application.

This section relates only to judgments directly affecting a husband’s title and has no application to a money judgment followed by sale on execution. Walters v. Anderson, 361 S.W.2d 31, 1962 Ky. LEXIS 226 ( Ky. 1962 ).

392.120. Jointure — When a bar to dower or curtesy — Waiver of — Indemnity for loss of.

  1. A conveyance or devise of real or personal estate, by way of jointure, may bar the surviving spouse’s interest in the property and estate of the deceased spouse. If, however, the jointure is made before marriage without the surviving spouse’s consent, or during the surviving spouse’s infancy the surviving spouse may, within twelve (12) months after decedent’s death, waive the jointure by written relinquishment, acknowledged or proved before, and left with, the county clerk, and have dower, curtesy, or share of the estate as provided by KRS 392.020 . A copy of such relinquishment shall be filed with the clerk of the court in which probate was made. When the surviving spouse so demands and receives dower, curtesy or such share of decedent’s estate, the estate conveyed or devised in lieu of dower or curtesy shall determine and revert to the heirs or representatives of the grantor or devisor.
  2. Where the surviving spouse is lawfully deprived of jointure, or any part of jointure, and not through any act of the surviving spouse’s own, the surviving spouse shall have indemnity for jointure out of decedent’s estate.

History. 2136, 2137: amend. Acts 1974, ch. 386, § 83; 1976 (Ex. Sess.), ch. 14, § 353, effective January 2, 1978; 1978, ch. 384, § 514, effective June 17, 1978.

NOTES TO DECISIONS

1.Jointure.

The term “jointure” means such an estate as may be conveyed or devised to the wife in lieu of dower. Pepper v. Thomas, 85 Ky. 539 , 4 S.W. 297, 9 Ky. L. Rptr. 122 , 1887 Ky. LEXIS 73 ( Ky. 1887 ) (decided under prior law).

The term “jointure” means generally a competent livelihood for the wife in the husband’s property, to take effect after his death; it means an estate conveyed or devised to the wife in lieu of dower. Maynard's Adm'r v. Maynard, 285 Ky. 75 , 146 S.W.2d 343, 1940 Ky. LEXIS 597 ( Ky. 1940 ).

2.Application.

The law of jointure does not apply where the widow has the right of election between receiving her statutory share in the estate or accepting the benefits of the will. Morguelan v. Lynch, 244 S.W.2d 433, 1951 Ky. LEXIS 1208 ( Ky. 1951 ).

3.Jointure by Acceptance of Devise or Bequest.

Where the husband dies testate and devises and bequeaths his entire estate to his wife and she accepts the estate under the will it is a jointure and she cannot claim dower in lands the husband sold during his lifetime. Grider v. Eubanks, 75 Ky. 510 , 1877 Ky. LEXIS 111 ( Ky. 1877 ) (decided under prior law).

A devise made by a husband in his will to his wife and received and used by her is a “jointure” under this section and bars the right of the wife to dower in intestate real estate of which the husband died seized. Smith v. Perkins, 148 Ky. 387 , 146 S.W. 758, 1912 Ky. LEXIS 446 ( Ky. 1912 ).

4.Renunciation of Jointure Contract.

Where a wife, uninfluenced by fraud or deceit, and upon a sufficient consideration, freely and voluntarily agrees to accept a conveyance or devise or property in lieu of her dower and distributable share of her husband’s estate, and the husband executes his part of the contract by making the devise or conveyance to her, she cannot, after his death, renounce the contract. Redwine's Ex'r v. Redwine, 160 Ky. 282 , 169 S.W. 864, 1914 Ky. LEXIS 474 ( Ky. 1914 ).

Cited:

Schuette v. Bowers, 40 F.2d 208, 1930 U.S. App. LEXIS 3134 (6th Cir. 1930).

Research References and Practice Aids

Cross-References.

Devisee to have contribution from other devisees when dower taken out of his share, KRS 394.480 .

Joinder by husband in wife’s deed bars curtesy, KRS 404.030 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Filing Renunciation of Will, Form 254.17.

Caldwell’s Kentucky Form Book, 5th Ed., Waiver of Jointure, Form 254.15.

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

392.130. Release of dower or curtesy upon sale of estate of infant or mentally disabled spouse.

The spouse of an infant spouse, or of a spouse judicially declared mentally disabled, if the spouse not under disability is of the age of eighteen (18) years, or if not, with the approval of the Circuit Court, on such terms as it may deem equitable, may unite with his guardian or conservator, or with the commissioner of the court, in the conveyance of the real estate of the spouse under disability, so as to release the inchoate right of dower or curtesy of the spouse not under disability, when a sale and conveyance of the real estate are ordered to be made by the guardian or conservator, or by the commissioner or other officer of the court. An infant spouse may also be permitted by the Circuit Court to unite with his adult spouse in the conveyance of the adult spouse’s real estate without terms, or on such terms as may be deemed equitable, so as to release the inchoate right of dower or curtesy of the infant spouse. If, in judicial proceedings to sell the real estate of an infant spouse, or of a spouse judicially declared mentally disabled, his spouse is made a party defendant, and by answer, and on privy examination in open court or by a judge of a court in which such proceedings are pending, or by a commissioner appointed by the court to take the case, the spouse not under disability consents to a sale of the property, free from the inchoate right of dower or curtesy of the spouse not under disability, either without terms or on terms designated by the spouse not under disability, the court may, if it deems the terms of such consent equitable, order the sale of such property, free from the inchoate right of dower or curtesy, upon the terms of consent proposed by that spouse.

History. 2146: amend. Acts 1974, ch. 386, § 84; 1982, ch. 141, § 102, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 116 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Mortgage.

This statute confers authority upon the Circuit Court to permit the infant wife to join in a deed conveying his property and includes the authority to permit the infant wife to join her husband in mortgaging the property when it is made to appear to the court that the best interest of herself and her husband will be served. Ex parte Roush, 281 Ky. 733 , 137 S.W.2d 352, 1940 Ky. LEXIS 99 ( Ky. 1940 ).

2.Surrender of Curtesy.

Infant husband joining with adult wife in conveyance of her realty effectually surrenders his curtesy. Jesse v. Kinser, 274 Ky. 821 , 120 S.W.2d 654, 1938 Ky. LEXIS 349 ( Ky. 1938 ).

3.Condemnation.

A wife is entitled to share in the proceeds from condemnation of her husband’s real estate by virtue of her inchoate dower right. United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F. Supp. 40, 1943 U.S. Dist. LEXIS 2068 (D. Ky. 1943 ).

Cited:

Mark v. Mark, 313 Ky. 536 , 233 S.W.2d 100, 1950 Ky. LEXIS 932 ( Ky. 1950 ).

392.140. Sale or mortgage of dower or curtesy interest of mentally disabled spouse.

Whenever a married person has become a confirmed mentally disabled person, the Circuit Court of the county in which is situated land belonging to the spouse of such disabled person may, upon the petition of the spouse of the mentally disabled person, adjudge the sale and conveyance, or the mortgage, of the inchoate right of dower or curtesy of the person under disability. The mentally disabled person and his guardian or conservator, if he has one, shall be made defendants to the action; if he has no guardian or conservator, the court shall appoint an attorney to defend for him, to whom the court shall make a reasonable allowance to be paid by the spouse of the mentally disabled person. A description of the land shall be given in the petition and the evidence of title of the spouse of the mentally disabled person filed therewith. If the court is satisfied by the proof that the mentally disabled spouse is a confirmed mentally disabled person, it may adjudge the sale and conveyance, or mortgage, of her inchoate right of dower or his inchoate right to curtesy in said land, and if the mentally disabled spouse has a guardian or conservator, the court may direct that he unite with the spouse of the mentally disabled person in the deed or mortgage; if the mentally disabled spouse has no guardian or conservator, the court shall appoint a commissioner who shall unite with the spouse of the mentally disabled person in the deed or mortgage. Before any judgment pursuant to this section shall be rendered, the spouse of the mentally disabled person, with at least two (2) good sureties, shall execute before the court a covenant to the Commonwealth for the benefit of the mentally disabled spouse, to be approved by the court, that the mentally disabled spouse will be paid the value of his right of dower or curtesy in the land should such right thereafter become complete.

History. 2145: amend. Acts 1942, ch. 152, §§ 2, 3; 1974, ch. 386, § 85; 1982, ch. 141, § 103, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 117 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Present Value.

In estimating the value of the wife’s inchoate right of dower under this section, the amount of a mortgage on the land which she united with her husband in executing should be deducted from the value of the land. Fichtner v. Fichtner's Assignee, 88 Ky. 355 , 11 S.W. 85, 10 Ky. L. Rptr. 924 , 1889 Ky. LEXIS 39 ( Ky. 1889 ) (decided under prior law).

2.Becomes Complete.

The present value of wife’s inchoate right of dower, “becomes complete,” within the meaning of the statute, when the sale is made under the judgment and perfected by a conveyance depriving her of all right in the land. Fichtner v. Fichtner's Assignee, 88 Ky. 355 , 11 S.W. 85, 10 Ky. L. Rptr. 924 , 1889 Ky. LEXIS 39 ( Ky. 1889 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Sale or mortgage of wife’s real estate when husband is incompetent, KRS 404.050 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

CHAPTER 393 Escheats

393.010. Definitions for chapter — Application of chapter. [Repealed]

HISTORY: 1605a, 1610: amend. Acts 1960, ch. 142, § 1; 1962, ch. 144, § 1; 1994, ch. 58, § 2, effective March 10, 1994; 1994, ch. 276, § 9, effective July 15, 1994; 1998, ch. 94, § 1, effective July 15, 1998; 2003, ch. 95, § 1, effective June 24, 2003; 2012, ch. 32, § 2, effective July 12, 2012; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.015. Use of abandoned property funds to support Commonwealth postsecondary education prepaid tuition trust fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 163, § 9, effective July 14, 2000) was repealed by Act 2005, ch. 173, Pt. XXI, § 2, effective March 20, 2005.

393.020. Property subject to escheat.

If any property having a situs in this state has been devised or bequeathed to any person and is not claimed by that person or by his heirs, distributees, or devisees within three (3) years after the death of the testator, or if the owner of any property having a situs in this state dies without heirs or distributees entitled to it and without disposing of it by will, it shall vest in the state, subject to all legal and equitable demands. Any property abandoned by the owner, except a perfect title to a corporeal hereditament, shall vest in the state, subject to all legal and equitable demands. Any property that vests in the state under this section shall be liquidated, and the proceeds, less costs, fees, and expenses incidental to all legal proceedings of the liquidation shall be paid to the department.

History. 1606; 1994, ch. 58, § 3, effective March 10, 1994; 1994, ch. 83, § 1, effective July 15, 1994; 2003, ch. 95, § 7, effective June 24, 2003.

NOTES TO DECISIONS

1.Constitutionality.

Escheat laws are constitutional so far as they vest title to the property in the Commonwealth and are unconstitutional so far as they vest title in private persons or corporations. Bank of Louisville v. Board of Trustees, 83 Ky. 219 , 5 S.W. 735, 7 Ky. L. Rptr. 185 ( Ky. 1885 ) (decided under prior law). See Louisville School Board v. Bank of Kentucky, 86 Ky. 150 , 5 S.W. 739, 9 Ky. L. Rptr. 433 , 1887 Ky. LEXIS 133 ( Ky. 1887 ) (decided under prior law).

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

2.Waiting Period.

The eight-year (now three years, pursuant to the 2003 amendments) waiting period applies only to devised property. Commonwealth use of Board of Education v. Schultz's Unknown Heirs, 268 Ky. 806 , 105 S.W.2d 1067, 1937 Ky. LEXIS 537 ( Ky. 1937 ).

Where a diligent search has failed to produce heirs of an intestate, the property escheats without a waiting period. Commonwealth use of Board of Education v. Schultz's Unknown Heirs, 268 Ky. 806 , 105 S.W.2d 1067, 1937 Ky. LEXIS 537 ( Ky. 1937 ).

3.Party to File Suit.

KRS 393.180 provides that an action to recover any sum due the state under this section shall be instituted on the relation of the commissioner of revenue by the county attorney of the county in which such property is located and the attorney general is not the proper party to file the suit. Commonwealth ex rel. Breckinridge v. Monroe Co., 378 S.W.2d 809, 1964 Ky. LEXIS 213 ( Ky. 1964 ).

4.Excess Lands Held by Corporation.

Lands held by a corporation in excess of the constitutional and statutory limits do not come under the provisions of this section. Commonwealth v. Wisconsin Chair Co., 119 Ky. 500 , 84 S.W. 535, 27 Ky. L. Rptr. 170 , 1905 Ky. LEXIS 21 ( Ky. 1905 ). See Commonwealth v. Farmers' Bank of Kentucky, 84 S.W. 732, 27 Ky. L. Rptr. 153 (1905); Commonwealth use of Louisville School Board v. Chicago, S. L. & N. O. R. Co., 124 Ky. 497 , 99 S.W. 596, 30 Ky. L. Rptr. 673 , 1907 Ky. LEXIS 207 ( Ky. 1907 ); Commonwealth v. Louisville Property Co., 128 Ky. 790 , 109 S.W. 1183, 33 Ky. L. Rptr. 225 , 1908 Ky. LEXIS 99 ( Ky. 1908 ).

5.Abandoned Property.

Where property removed from safety deposit boxes had not been adjudged to be actually abandoned, it had not yet escheated to the state and master commissioner was under no statutory duty to sell it because it was not tangible personal property required by KRS Chapter 393 to be liquidated. Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

This chapter does not intend the term “presumed abandoned” to be synonymous with “abandoned”; rather, property is abandoned in the statutory sense only when it has been actually, as opposed to presumptively, abandoned. Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

Until the property has been adjudged by a court of competent jurisdiction to be actually abandoned, the property does not escheat to the state, and until that time the owner still is entitled to regain its possession. Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

6.State Acquires All Rights.

By escheat, the state acquires all of the rights of the former owner and will pass such title to a purchaser. Elmondorff v. Carmichael, 13 Ky. 472 , 1823 Ky. LEXIS 118 ( Ky. 1823 ) (decided under prior law).

Cited:

Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Weapons accumulated by the county coroner which were used in suicides should be treated as abandoned personal property which escheats to the state under the statute, to be liquidated and the proceeds paid to the department of revenue. OAG 67-8 .

If the money in the Circuit Court clerk’s special account representing the amount due under an outstanding juror’s check paid pursuant to KRS 28.180 (repealed) is unclaimed for seven years after the check is issued there is a presumption of abandonment and the money escheats to the state. OAG 74-583 .

Where a considerable amount of prisoners’ clothing and money was abandoned at the Jefferson County jail operated by the metropolitan correctional services department, it was escheatable to the state under this section and KRS 393.066 . OAG 79-646 .

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

393.022. Escheat of United States savings bonds to Commonwealth.

  1. As used in this section:
    1. “Book-entry bond” means a savings bond maintained by the United States Treasury in electronic or paperless form as a computer record;
    2. “Definitive bond” means a savings bond issued by the United States Treasury in paper form;
    3. “Final maturity” means the date a United States savings bond ceases to earn interest; and
    4. “United States savings bond” means a book-entry bond or definitive bond issued by the United States Treasury.
  2. This section shall apply to the escheat of United States savings bonds to the Commonwealth of Kentucky.
  3. A United States savings bond held or owing in this state by any person, or issued or owed in the course of a holder’s business, or by a state or other government, governmental subdivision, agency, or instrumentality, and all proceeds thereof, shall be presumed abandoned in this state if:
    1. The last known address of the owner of the United States savings bond is in this state; and
    2. The United States savings bond has remained unclaimed and unredeemed for three (3) years after final maturity.
  4. United States savings bonds which are presumed abandoned under subsection (3) of this section shall escheat to the Commonwealth of Kentucky three (3) years after becoming abandoned property, and all property rights and legal title to and ownership of the United States savings bonds or proceeds from the bonds, including all rights, powers, and privileges of survivorship of any owner, co-owner, or beneficiary, shall vest solely in the Commonwealth of Kentucky according to the procedure set forth in subsections (5) to (8) of this section.
  5. If no claim has been filed in accordance with the provisions of this chapter, the department shall commence a civil action in the Franklin Circuit Court for a determination that United States savings bonds have escheated to the Commonwealth of Kentucky and the Commonwealth of Kentucky is the owner of the savings bonds.
    1. The department shall provide notice of the action by publication in at least two (2) newspapers of statewide circulation in accordance with the provisions of KRS 424.110 to 424.215 . (6) (a) The department shall provide notice of the action by publication in at least two (2) newspapers of statewide circulation in accordance with the provisions of KRS 424.110 to 424.215 .
    2. The notice shall list all persons to be served and shall notify those persons that:
      1. The person has been sued in a named court;
      2. The person must answer the petition or other pleading or otherwise respond, on or before a specified date not less than fifty (50) days after the date the notice is first published; and
      3. If the person does not answer or otherwise respond, the petition or other pleading shall be taken as true and judgment, the nature of which shall be stated, will be rendered accordingly.
  6. Prior to providing notice by publication as required by subsection (6) of this section, the Treasurer or his or her designee shall file with the court an affidavit stating all the following that apply:
      1. The residences of all named persons sought to be served, if known; (a) 1. The residences of all named persons sought to be served, if known;
      2. The names of all persons whose residences are unknown after reasonable effort to ascertain them; and
      3. The specific efforts made to ascertain the unknown residences;
    1. That the affiant has made a reasonable but unsuccessful effort to ascertain the names and residences of any persons sought to be served as unknown parties, and the specific efforts made to ascertain the names and residences;
    2. That the department is unable to obtain service of summons on the persons in the state; and
    3. That the case is one in which the department, with due diligence, is unable to serve summons on the person in this state and:
      1. The case relates to personal property in this state, if any person has or claims an interest in the property; or
      2. In which the relief demanded consists wholly or partly in excluding the person from any interest in the property.
  7. If:
    1. No person files a claim or appears at the hearing to substantiate a claim; or
    2. The court determines that a claimant is not entitled to the property claimed by the claimant;

      then the court, if satisfied by the evidence that the department has substantially complied with the laws of the Commonwealth, shall enter a judgment that the subject United States savings bonds have escheated to the Commonwealth of Kentucky, and all property rights and legal title to and ownership of the United States savings bonds or proceeds from the bonds, including all rights, powers, and privileges of survivorship of any owner, co-owner, or beneficiary, shall vest solely in the Commonwealth of Kentucky.

  8. The department shall redeem the United States savings bonds escheated to the Commonwealth, and the proceeds from the redemption shall be deposited into a separate subsidiary account of the abandoned property fund.
  9. After a judgment of escheat has been entered pursuant to subsection (8) of this section, the Treasurer or his or her designee may, at his or her discretion, make full or partial payment of requests for the proceeds of United States savings bonds to persons to whom, in the opinion of the Treasurer or his or her designee, the Commonwealth should in fairness and equity allow payment.

History. Enact. Acts 2014, ch. 102, § 4, effective April 10, 2014.

393.025. Owner of abandoned property loses income or increments accruing thereafter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 142, § 5; 1972, ch. 274, § 164; 1988, ch. 23, § 190, effective January 1, 1989) was repealed by Acts 1998, ch. 560, § 9, effective July 15, 1998.

393.030. Disposition of property subject to escheat.

  1. The personal representative of a person, any part of whose property is not distributed by will, and who died without heirs or distributees entitled to it shall settle their accounts within one (1) year after qualifying, and pay to the department the proceeds of all personal property, first deducting the proper legal liabilities of the estate.
  2. If the whole personal property cannot be settled and the accounts closed within one year, the settlement as far as practicable, shall then be made and the proceeds paid to the department, and the residue shall be settled and paid as soon thereafter as can be properly done.
  3. The personal representative shall take possession of the real property of the decedent not disposed of by his will, and rent it out from year to year until it is otherwise legally disposed of, and pay the net proceeds to the department.
  4. The personal representative shall also make out and transmit to the department a description of the quantity, quality, and estimated value of the real property and its probable annual profits.

History. 1607; 1994, ch. 58, § 4, effective March 10, 1994.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

393.040. Procedure if legacy or devise is not claimed.

If any devisee or legatee, or his heir, devisee, or distributee, has failed for seven (7) years to claim his legacy or devise, the personal representative of the testator, or other person possessing it shall, after deducting the legal liabilities thereon, pay and deliver it and the net profits from it to the department.

History. 1608; 1994, ch. 58, § 5, effective March 10, 1994; 1994, ch. 83, § 2, effective July 15, 1994.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 58 and 83 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

393.050. Presumption of death after seven years — Disposition of property.

Except as provided in KRS 422.132 , when a person owning any property having a situs in this state is not known to be living for seven (7) successive years, and neither he nor his heirs, devisees, or distributees can be located or proved to have been living for seven (7) successive years, he shall be presumed to have died without heirs, devisees, or distributees, and his property shall be liquidated and the proceeds, less costs incident to the liquidation and any legal proceedings, and the liabilities which have been properly claimed and approved against it, shall be paid to the department.

History. 1609: amend. Acts 1994, ch. 58, § 6, effective March 10, 1994; 2002, ch. 57, § 2, effective July 15, 2002.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Appointing Administrator where Person Absent Seven Years, Form 234.06.

393.060. Presumption of abandonment of certain property held by bank or financial organization. [Repealed]

HISTORY: 1610: amend. Acts 1960, ch. 142, § 6; 1976, ch. 255, § 1; 1994, ch. 83, § 3, effective July 15, 1994; 1998, ch. 560, § 1, effective July 15, 1998; 2008, ch. 132, § 12, effective April 24, 2008; repealed and reenact., Acts 2009, ch. 86, § 11, effective March 24, 2009; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.062. Presumption of abandonment of unclaimed funds held by life insurance corporation. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 2, effective June 16, 1960; 2003, ch. 95, § 8, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.063. Treatment of refunds of workers’ compensation special fund assessments held by an insurance carrier and owed to an insured employer.

  1. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, refunds of workers’ compensation special fund assessments levied in accordance with KRS 342.122 shall be deemed “unclaimed refunds” if held by an insurance carrier and owed to an insured employer.
  2. For purposes of this section, “unclaimed refunds” means all unremitted workers’ compensation special fund assessments collected by a carrier, as defined in KRS 342.0011(6), in excess of the applicable special fund assessment rate, owing and unpaid to an insured employer after the Kentucky Workers’ Compensation Funding Commission has made a determination that the carrier has made a reasonable attempt to return the unclaimed refunds to the insured employer.
  3. Unclaimed refunds shall be remitted by the insurance carrier to the Kentucky Workers’ Compensation Funding Commission, created under KRS 342.1223 , and shall be credited to the benefit reserve fund, created under KRS 342.1229 , within the Kentucky Workers’ Compensation Funding Commission. Unclaimed refunds remitted to the Kentucky Workers’ Compensation Funding Commission and held by that commission for more than two (2) years shall become the property of the benefit reserve fund.
  4. The unclaimed refunds remitted as required in this section to the Kentucky Workers’ Compensation Funding Commission and held for more than two (2) years shall not thereafter be available to any party who may have a claim to the remitted unclaimed refunds, and any claims that arise under this section including claims for the remitted sums shall be forever barred against the Kentucky Workers’ Compensation Funding Commission and any carrier complying with this section.
  5. The provisions of this section shall apply to any refunds or unclaimed refunds owing and held by a carrier on or after July 15, 1998.

History. Enact. Acts 1998, ch. 449, § 1, effective July 15, 1998.

393.064. Presumption of abandonment of stock or dividend of business association. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 3, effective June 16, 1960; 1994, ch. 83, § 4, effective July 15, 1994; 2003, ch. 95, § 9, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.066. Presumption of abandonment of intangible personal property held by fiduciary. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 4, effective June 16, 1960; 2003, ch. 95, § 10, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.068. Presumption of abandonment of personal property held by federal government.

  1. All tangible personal property or intangible personal property, including choses in action in amounts certain, and all debts owed or entrusted funds or other property held by the federal government or any federal agency, or any officer, or appointee thereof, shall be presumed abandoned in this state if the last known address of the owner of the property is in this state and the property has remained unclaimed for three (3) years.
  2. The federal government or any federal agency thereof which pays or delivers abandoned property to the department under this section is relieved of all liability to the extent of the value of the property so paid or delivered for any claim which then exists or which thereafter may arise or be made in respect to the property.
  3. The federal government or any federal agency thereof may deduct from the amounts to be paid or delivered to the department the proportionate share of the actual and necessary costs of examining records and reporting such information.

History. Enact. Acts 1960, ch. 142, § 10, effective June 16, 1960; 1994, ch. 58, § 7, effective March 10, 1994; 2014, ch. 102, § 5, effective April 10, 2014.

NOTES TO DECISIONS

1.Action by State.

States had standing under their unclaimed property statutes to bring action against the Secretary of the Treasury of the United States and Comptroller General of the United States to attempt to obtain custody of moneys belonging to their citizens contained in the U.S. Treasury trust fund receipt accounts; however, the states cannot rely on their own laws to compel the disbursement of the moneys, and since federal law is supreme they must first exhaust their administrative remedies under 31 USCS, § 1322 by applying to the particular transferring administrative agencies, bureaus or offices and comply with their requirements for perfecting a claim. Alabama v. Bowsher, 734 F. Supp. 525, 1990 U.S. Dist. LEXIS 3554 (D.D.C. 1990), aff'd, 935 F.2d 332, 290 U.S. App. D.C. 166, 1991 U.S. App. LEXIS 11675 (D.C. Cir. 1991).

Opinions of Attorney General.

The commonwealth of Kentucky has the legal authority to take custody of the contents of unclaimed safety deposit boxes of closed national banks in possession of the Comptroller of the Currency. OAG 84-252 .

There is no statute of limitations applicable to the owners of unclaimed property in the possession of the Comptroller of the Currency. OAG 84-252 .

393.070. Deposits not payable on demand — When presumed abandoned. [Repealed.]

Compiler’s Notes.

This section (1610: amend. 1994, ch. 83, § 5, effective July 15, 1994) was repealed by Acts 1998, ch. 560, § 9, effective July 15, 1998.

393.072. Presumption of abandonment of property from demutualization of insurance company. [Repealed]

HISTORY: Enact. Acts 2003, ch. 95, § 6, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.080. Presumption of abandonment of security deposit or public utility refund.

The following funds held or owing are presumed abandoned:

  1. Any deposit of money, stocks, bonds, or other credits made to secure payment for services rendered or to be rendered, or to guarantee the performance of services or duties, or to protect against damage or harm, and the increments thereof, unless claimed by the person entitled thereto within three (3) years after the occurrence of the event that would obligate the holder or depository to return it or its equivalent.
  2. Except as provided in KRS 272.291 , any sum which a public utility has been ordered to refund and which was received for utility services rendered in this state, together with any interest thereon, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than three (3) years after the date it became payable in accordance with the final determination or order providing for the refund.
  3. If there remains a total of one million dollars ($1,000,000) or more in unclaimed sums one (1) year after a public utility refund became payable in accordance with the final determination or order providing for the refund, excepting sums that may eventually be claimed pursuant to KRS 272.291 , and less any lawful deductions, the Finance and Administration Cabinet shall enter into an agreement or agreements with the public utility that will allow the public utility to pay the unclaimed sums, minus the exceptions noted above, to the Kentucky State Treasurer immediately if the Attorney General determines by written opinion that a reasonable relationship exists between the source of and reason for the refund, and the workers’ compensation liability of a bankrupt employer who purportedly was self-insured, either individually or through a self-insurance group, under KRS Chapter 342. Payment of the unclaimed sums to the Kentucky State Treasurer shall constitute a complete release of the public utility from any further responsibility for the sums so paid, and from liability to any person who may have a claim to any of such sums.
  4. The Kentucky Workers’ Compensation Funding Commission shall preserve the rights of persons or ratepayers entitled to claim a refund under this section, and may utilize any funds available to the agency for the purpose of preserving those rights.

History. 1610: amend. Acts 1960, ch. 142, § 7; 1994, ch. 83, § 6, effective July 15, 1994; 1996, ch. 116, § 1, effective March 28, 1996, retroactive to February 1, 1976; 2003, ch. 95, § 11, effective June 24, 2003.

Compiler’s Notes.

Section 3 of Acts 1996, ch. 116 read: “The provisions of this Act shall expire on July 15, 1998, unless continued or modified by law, except that administration and distribution of trust accounts established prior to that date shall continue until the final payments to eligible claimants have been made.”

Section 4 of Acts 1996, ch. 116 read, “The provisions of Section 1 of this Act shall be retroactive to February 1, 1976.”

Legislative Research Commission Note.

(3/28/96). Subsections (3) and (4) of this statute were added by 1996 Ky. Acts Ch. 116, sec. 1, and “expire on July 15, 1998, unless continued or modified by law.” See 1996 Ky. Act ch. 116, sec. 3.

Opinions of Attorney General.

Worker’s compensation claimants who were working for bankrupt coal company which was closely tied to South East Coal Company through the miner’s self-insurance group since the default of SECC drained Miners’ Self Insurance Group (MSIG) of its assets, and thereby resulted in the default of the coal company to its workers, and thus there was a reasonable relationship between the source of, and reason for, the refund held by Kentucky Utility Company and the unpaid workers’ compensation liability of coal company, within the meaning of this section as amended by Acts 1996, ch. 116, § 1, such claimants were also entitled to claim benefits from the SERF Fund created from the pool of unclaimed utility rebates ordered following the Kentucky Utility Co. vs. South East Coal Company case. OAG 96-36 .

393.082. Special expendable trust fund for unclaimed sums under KRS 393.080(3) — Administration and distribution of fund — Claims procedures.

  1. Unclaimed sums delivered to the Kentucky State Treasurer pursuant to KRS 393.080(3) shall be placed in a special expendable trust fund established by the Kentucky Workers’ Compensation Funding Commission. The Kentucky Workers’ Compensation Funding Commission shall establish a separate trust account with respect to each final determination or order providing for a refund that the Attorney General determines to have a reasonable relationship to the workers’ compensation liability of a bankrupt employer.
  2. The commissioner of the Department of Workers’ Claims shall be the administrator of the resulting trust fund established pursuant to this section. The commissioner or his or her designee shall be authorized to determine the value of all workers’ compensation claims against the bankrupt employer and to prepare a comprehensive distribution plan. Eligible claimants may elect to participate in a comprehensive distribution plan in exchange for the release of all related claims against the Commonwealth and all of its cabinets, departments, offices, bureaus, agencies, officers, agents, and employees, with the exception of the special fund in the Labor Cabinet. A claimant shall agree as part of a release under this section not to file any future motions to reopen the named workers’ compensation claim or claims, and not to file new claims with respect to the same injury or occupational disease.
  3. A comprehensive distribution plan for unclaimed utility refunds placed in a trust account pursuant to this section shall consist of the full payment of workers’ compensation income benefits for eligible claimants until the fund is exhausted, subject to the exceptions noted in KRS 393.080 and this section, and may include lump-sum settlements in addition to biweekly payment plans. An initial distribution shall be made to eligible claimants after the commissioner of the Department of Workers’ Claims, or the commissioner’s designee, has made an initial determination of the number of eligible claimants, the amount of income benefits due, and the amount to be retained as a reserve for pending claims. The initial distribution shall include payment of all past due income benefits, without interest, for eligible claimants.
  4. Neither the special fund nor the uninsured employers’ fund shall be considered to be claimants for the purposes of this section. Medical and related benefits shall not be considered in the valuation of the claims unless the amount available in the trust fund clearly exceeds the estimated value of income benefits for all claims. If a workers’ compensation surety bond, letter of credit, or other form of security for the payment of the workers’ compensation liabilities of a bankrupt employer has been collected by the commissioner of the Department of Workers’ Claims or the Workers’ Compensation Board for distribution to claimants in a manner to be determined by court order, it may be assumed in the valuation of the claims in a comprehensive distribution plan that the security will be distributed by the court on a pro rata basis and an appropriate deduction may be taken.
  5. In preparing the valuation of claims for inclusion in a comprehensive distribution plan, the commissioner or the commissioner’s designee shall deduct special fund payments. Settlement of a workers’ compensation claim as part of a comprehensive distribution plan under this section shall not accelerate the date on which the special fund’s liability becomes due.
  6. If the bankrupt employer ceased business operations at least three (3) years prior to establishment of a trust account pursuant to this section, only claimants who file workers’ compensation claims within sixty (60) days of the establishment of the trust account or before shall be eligible to receive payments from the trust fund.
  7. All claimants shall cooperate with information requests from the Department of Workers’ Claims concerning prior payments of workers’ compensation benefits. The commissioner of the Department of Workers’ Claims or his or her designee may subpoena witnesses, including present or past managers and officers of the bankrupt employer, and may conduct evidentiary hearings under oath relating to the past and present workers’ compensation liabilities of the bankrupt employer or information relevant to unpaid workers’ compensation benefits. Administrative subpoenas issued under the authority of the commissioner of the Department of Workers’ Claims for this purpose may be enforced in the Franklin Circuit Court.
  8. The Attorney General shall provide representation of the comprehensive distribution plan as a named defendant in the event the establishment of the trust fund is challenged.
  9. The provisions of KRS 393.080(3) or this section shall not be construed to constitute an admission of the validity of any workers’ compensation claims, nor shall these provisions be interpreted in a manner that would transfer or create liability on behalf of the commissioner of the Department of Workers’ Claims, any agency, or employee, beyond that expressly set forth in a comprehensive distribution plan.
  10. The special fund shall issue trust fund checks in the amounts and to the claimants or claimants’ representatives as directed by the commissioner of the Department of Workers’ Claims.
  11. The personnel and other costs of administering a trust fund established pursuant to this section shall be paid out of the investment income of the trust fund.
  12. Attorney fees shall be subject to the limitations and maximum amounts for the payment of attorney’s fees established by KRS 342.320 , as well as the approval of the commissioner or his or her designee.
  13. If a workers’ compensation claimant elects not to participate in a comprehensive distribution plan proposed by the commissioner of the Department of Workers’ Claims or the commissioner’s designee, that claimant shall not be entitled to any portion of the utility refund for the payment of the workers’ compensation benefits. A claimant shall have sixty (60) days following issuance of a comprehensive distribution plan in which to make an election to participate or not.

History. Enact. Acts 1996, ch. 116, § 2, effective March 28, 1996; 1996 (1st Ex. Sess.), ch. 1, § 72, effective December 12, 1996; 2010, ch. 24, § 1921, effective July 15, 2010.

Legislative Research Commission Note.

(3/28/96). This section “expire[s] on July 15, 1998, unless continued or modified by law, except that the administration and distribution of trust accounts established prior to that date shall continue until the final payments to eligible claimants have been made.” See 1996 Ky. Acts ch. 116, sec. 3.

393.090. Presumption of abandonment of intangible personal property not otherwise covered. [Repealed]

HISTORY: 1610: amend. Acts 1960, ch. 142, § 8; 1962, ch. 144, § 2; 1966, ch. 255, § 267; 2003, ch. 95, § 12, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.092. Effect of property owner’s residence in another state. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 13, effective June 16, 1960; 1998, ch. 560, § 5, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.095. Unclaimed pari-mutuel tickets from quarter horse or Appaloosa racetracks. [Repealed]

HISTORY: Enact. Acts 1950, ch. 29; 1978, ch. 307, § 16, effective June 17, 1978; 1980, ch. 84, § 15, effective July 15, 1980; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.100. Property paid into court — When presumed abandoned — Reversion to municipality or consolidated local government which procured payment into court. [Repealed]

HISTORY: 1610: amend. Acts 1944, ch. 50; 2002, ch. 346, § 229, effective July 15, 2002; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.110. Administrative regulations for reports by holders of abandoned property to report to department — Posting and publication of notices. [Repealed]

HISTORY: 1611: amend. Acts 1942, ch. 156, §§ 1, 2; 1944, ch. 53, § 1; 1960, ch. 142, § 9; 1962, ch. 144, § 3; 1966, ch. 239, § 221; 1976, ch. 155, § 27; 1982, ch. 65, § 1, effective July 15, 1982; 1986, ch. 496, § 28, effective August 1, 1986; 1994, ch. 58, § 8, effective March 10, 1994; 1994, ch. 83, § 7, effective July 15, 1994; 1994, ch. 276, § 10, effective July 15, 1994; 1998, ch. 560, § 6, effective July 15, 1998; 2003, ch. 95, § 2, effective June 24, 2003; 2005, ch. 173, Pt. IA.16, § 1, effective March 20, 2005; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.115. Advertising expenses. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 11, effective June 16, 1960; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.117. Conditions governing enforceability of agreements to locate property presumed abandoned.

  1. An agreement by an owner, the primary purpose of which is to locate, deliver, recover, or assist in the recovery of property that is presumed abandoned, is void and unenforceable if it was entered into during the period commencing on the date that the property was presumed abandoned and extending to a time that is twenty-four (24) months after the date that the property is paid or delivered to the department. This subsection shall not apply to an owner’s agreement with an attorney to file a claim as to identified property or contest the administrator’s denial of a claim.
  2. An agreement by an owner, the primary purpose of which is to locate, deliver, recover, or assist in the recovery of property and that is not in violation of subsection (1) of this section, is enforceable only if:
    1. The agreement is in writing;
    2. The agreement provides that the fee or compensation agreed upon is an amount not more than ten percent (10%) of the value of the property collected;
    3. The agreement clearly sets forth the nature of the property and the services to be rendered;
    4. The agreement is signed by the apparent owner; and
    5. The agreement states the value of the property before and after the fee or other compensation has been deducted.
  3. An agreement covered by this section that provides for compensation that is unconscionable is unenforceable except by the owner. An owner who has agreed to pay compensation that is unconscionable, or the administrator on behalf of the owner, may maintain an action to reduce the compensation to a conscionable amount. The court may award reasonable attorney’s fees to an owner who prevails in the action.
  4. This section does not preclude an owner from asserting that an agreement covered by this section is invalid on grounds other than unconscionable compensation.
  5. An advertisement, a written communication, or an agreement concerning the location, delivery, recover, or assistance in the recovery of property reported under this chapter shall contain a provision stating that, by law, any contract provision requiring the payment of a fee for finding property that has been held by the administrator for less than twenty-four (24) months is void and not enforceable, and that fees are limited to an amount not more than ten percent (10%) of the value of the property collected.

History. Enact. Acts 1998, ch. 560, § 4, effective July 15, 1998.

393.120. Sale of property required to be liquidated to pay department. [Repealed]

HISTORY: 1612: amend. Acts 1966, ch. 239, § 222; 1976, ch. 155, § 28; 1994, ch. 58, § 9, effective March 10, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.125. Sale by department. [Repealed]

HISTORY: Enact. Acts 1998, ch. 560, § 8, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.130. Rights and duties of persons who have transferred property to department. [Repealed]

HISTORY: 1613: amend. Acts 1960, ch. 142, § 12; 1994, ch. 58, § 10, effective March 10, 1994; 1998, ch. 560, § 3, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.140. Claim of interest in property surrendered to state. [Repealed]

HISTORY: 1614: amend. Acts 1954, ch. 23; 1966, ch. 239, § 223; 1994, ch. 58, § 11, effective March 10, 1994; 1994, ch. 83, § 8, effective July 15, 1994; 1998, ch. 560, § 7, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.150. State Treasurer to determine claims. [Repealed]

HISTORY: 1615: amend. 1994, ch. 58, § 12, effective March 10, 1994; 1994, ch. 83, § 9, effective July 15, 1994; 1994, ch. 276, § 11, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.160. Appeals from decision of State Treasurer. [Repealed]

HISTORY: 1615: amend. Acts 1960, ch. 104, § 21; 1994, ch. 276, § 12, effective July 15, 1994; 2003, ch. 95, § 3, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.170. Property in federal custody — Determination of whether escheat has occurred.

Whenever any property escheated under this chapter by reason of actual abandonment, or death or presumption of death of the owner without leaving any person entitled to take the legal or equitable title under the laws of this state relating to wills, or descent and distribution, has been deposited with, or in the custody or under the control of, any federal court in and for any district in this state, or in the custody of any depository, clerk or other officer of such court, or has been surrendered by such court or its officers to the United States Treasury, the Circuit Court of any county in which such federal court sits shall have jurisdiction to ascertain whether an escheat has occurred, and to enter a judgment of escheat in favor of the state. This section does not authorize a judgment to require such courts, officers, agents or depositories to pay or surrender funds to this state on a presumption of abandonment as provided in KRS 393A.040 to 393A.140 .

HISTORY: 1616; 2018 ch. 163, § 91, effective July 14, 2018.

NOTES TO DECISIONS

Cited:

Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

393.180. Proceedings instituted by county attorney on relation of State Treasurer. [Repealed]

HISTORY: 1618: amend. 1994, ch. 58, § 13, effective March 10, 1994; 1994, ch. 276, § 13, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.190. Assistant Attorney General to aid county attorney. [Repealed]

HISTORY: 1618: amend. Acts 1962, ch. 210, § 48; 1994, ch. 58, § 14, effective March 10, 1994; 1994, ch. 276, § 14, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.200. State Treasurer may perform duties of county attorney.

If the county attorney declines to perform the duties imposed upon him by this chapter, they may be performed by the State Treasurer. When he considers it to the best interest of the state, the State Treasurer may institute any action authorized by this chapter to be brought by the county attorney, or join the county attorney in the active prosecution of the action.

History. 1618: amend. Acts 1976 (Ex. Sess.), ch. 17, § 49, effective January 1, 1978; 1994, ch. 58, § 15, effective March 10, 1994; 1994, ch. 276, § 15, effective July 15, 1994.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 58 and 276. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 276, which was last enacted by the General Assembly, prevails under KRS 446.250 .

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

393.210. Property in two or more counties. [Repealed]

HISTORY: 1618: amend. Acts 1976 (Ex. Sess.), ch. 17, § 50, effective January 1, 1978; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.220. Disposition of tangible property during proceeding. [Repealed]

HISTORY: 1618; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.230. Proceeding to force payment or surrender of intangible property — To establish actual abandonment. [Repealed]

HISTORY: 1619: amend. 1994, ch. 58, § 16, effective March 10, 1994; 1994, ch. 276, § 16, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.240. Actions may be joined — Procedure for action. [Repealed]

HISTORY: 1619: amend. 1994, ch. 58, § 17, effective March 10, 1994; 1994, ch. 276, § 17, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.250. Source of payment of expenses — County attorney to collect judgments.

Any necessary expense required to be paid by the state in administering and enforcing this chapter shall be paid out of the abandoned property fund.

HISTORY: 1620: amend. Acts 1976 (Ex. Sess.), ch. 17, § 51, effective January 1, 1978; 1994, ch. 58, § 18, effective March 10, 1994; 1994, ch. 83, § 10, effective July 15, 1994; 2003, ch. 95, § 4, effective June 24, 2003; 2018 ch. 163, § 92, effective July 14, 2018.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 58 and 83. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 83, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

Cited:

Anderson Nat’l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

393.260. Limitation of state’s action. [Repealed]

HISTORY: 1621; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.270. Person under disability, extension. [Repealed]

HISTORY: 1622; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.280. Examination of records — Promulgation of administrative regulations and rules — Delegation of State Treasurer’s authority. [Repealed]

HISTORY: 1622-1: amend. 1994, ch. 58, § 19, effective March 10, 1994; 1994, ch. 276, § 18, effective July 15, 1994; 1998, ch. 560, § 2, effective July 15, 1998; 2003, ch. 95, § 5, effective June 24, 2003; 2005, ch. 173, Pt. IA.16, § 2, effective March 20, 2005; 2010, ch. 24, § 1922, effective July 15, 2010; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.290. Civil action to enforce production of reports or the surrender of property. [Repealed]

HISTORY: 1622-1; 1994, ch. 58, § 20, effective March 10, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.300. Restriction on escheat of real property held by lending corporation under supervision.

No person shall institute proceedings to escheat real property the title to which was acquired by any lending corporation in satisfaction of debts previously contracted in the course of its business, or that it purchases under a judgment for any such debt in its favor, if such lending corporation is under the supervision of the Department of Financial Institutions of this state, comptroller of currency of the United States or any other duly constituted supervising banking authority, state or Federal, without first obtaining the consent of the supervising authority having supervision over that corporation.

History. 1623-1; amend. 2010, ch. 24, § 1923, effective July 15, 2010.

393.990. Penalties. [Repealed]

HISTORY: 1622-1; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

CHAPTER 393A Revised Uniform Unclaimed Property Act

HISTORY: 2018 ch. 163, § 1, effective July 14, 2018.

General Provisions

393A.010. Definitions for chapter.

As used in this chapter:

  1. “Administrator” means the Kentucky State Treasurer;
  2. “Administrator’s agent”:
    1. Means a person with which the administrator contracts to conduct an examination under KRS 393A.550 to 393A.650 on behalf of the administrator; and
    2. Includes an independent contractor of the person and each individual participating in the examination on behalf of the person or contractor;
  3. “Apparent owner” means a person whose name appears on the records of a holder as the owner of property held, issued, or owing by the holder;
  4. “Business association” means a corporation, joint stock company, investment company other than an investment company registered under 15 U.S.C. secs. 80 a-1 to 80a-64, as amended, partnership, unincorporated association, joint venture, limited liability company, business trust, trust company, land bank, safe deposit company, safekeeping depository, financial organization, insurance company, federally chartered entity, utility, sole proprietorship, or other business entity, whether or not for profit;
  5. “Confidential information” means records, reports, and information that are confidential under KRS 393A.780 ;
  6. “Domicile” means:
    1. For a corporation, the state of its incorporation;
    2. For a business association whose formation requires a filing with a state, other than a corporation, the state of its filing;
    3. For a federally chartered entity or an investment company registered under 15 U.S.C. secs. 80 a-1 to 80a-64, as amended, the state of its home office; and
    4. For any other holder, the state of its principal place of business;
  7. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
  8. “Electronic mail” means a communication by electronic means which is automatically retained and stored and may be readily accessed or retrieved;
  9. “Financial organization” means a savings and loan association, building and loan association, savings bank, industrial bank, bank, banking organization, or credit union;
  10. “Game-related digital content”:
    1. Means digital content that exists only in an electronic game or electronic-game platform;
    2. Includes:
      1. Game-play currency such as a virtual wallet, even if denominated in United States currency; and
      2. The following if for use or redemption only within the game or platform or another electronic game or electronic-game platform:
        1. Points sometimes referred to as gems, tokens, gold, and similar names; and
        2. Digital codes; and
    3. Does not include an item that the issuer permits to be redeemed for use outside a game or platform:
      1. For money;
      2. For goods or services that have more than minimal value; or
      3. That otherwise monetizes for use outside a game or platform;
  11. “Gift card”:
    1. Means stored-value card:
      1. The value of which does not expire;
      2. That may be decreased in value only by redemption for merchandise, goods, or services; and
      3. That, unless required by law, may not be redeemed for or converted into money or otherwise monetized by the issuer; and
    2. Includes a prepaid commercial mobile radio service, as defined in 47 C.F.R. sec. 20.3, as amended;
  12. “Holder” means a person obligated to hold for the account of, or to deliver or pay to, the owner, property subject to this chapter;
  13. “Insurance company” means an association, corporation, or fraternal or mutual-benefit organization, whether or not for profit, engaged in the business of providing life endowments, annuities, or insurance, including accident, burial, casualty, credit-life, contract-performance, dental, disability, fidelity, fire, health, hospitalization, illness, life, malpractice, marine, mortgage, surety, wage-protection, and worker-compensation insurance;
  14. “Loyalty card”:
    1. Means a record given without direct monetary consideration under an award, reward, benefit, loyalty, incentive, rebate, or promotional program, which may be used or redeemed only to obtain goods or services or a discount on goods or services; and
    2. Does not include a record that may be redeemed for money or otherwise monetized by the issuer;
  15. “Mineral” means gas, oil, coal, oil shale, other gaseous liquid or solid hydrocarbon, cement material, sand and gravel, road material, building stone, chemical raw material, gemstone, fissionable and nonfissionable ores, colloidal and other clay, steam and other geothermal resources, and any other substance defined as a mineral by law of this state other than this chapter;
  16. “Mineral proceeds”:
    1. Means an amount payable for extraction, production, or sale of minerals, or, on the abandonment of the amount, an amount that becomes payable after abandonment; and
    2. Includes an amount payable:
      1. For the acquisition and retention of a mineral lease, including a bonus, royalty, compensatory royalty, shut-in royalty, minimum royalty, and delay rental;
      2. For the extraction, production, or sale of minerals, including a net revenue interest, royalty, overriding royalty, extraction payment, and production payment; and
      3. Under an agreement or option, including a joint-operating agreement, unit agreement, pooling agreement, and farm-out agreement;
  17. “Money order”:
    1. Means a payment order for a specified amount of money; and
    2. Includes an express money order and a personal money order on which the remitter is the purchaser;
  18. “Municipal bond” means a bond or evidence of indebtedness issued by a municipality or other political subdivision of a state;
  19. “Net card value” means the original purchase price or original issued value of a stored-value card, plus amounts added to the original price or value, minus amounts used and any service charge, fee, or dormancy charge permitted by law;
  20. “Non-freely transferable security”:
    1. Means a security that cannot be delivered to the administrator by the Depository Trust Clearing Corporation or similar custodian of securities providing post-trade clearing and settlement services to financial markets or cannot be delivered because there is no agent to effect transfer; and
    2. Includes a worthless security;
  21. “Owner”:
    1. Means a person that has a legal, beneficial, or equitable interest in property subject to this chapter or the person’s legal representative when acting on behalf of the owner; and
    2. Includes:
      1. A depositor, for a deposit;
      2. A beneficiary, for a trust other than a deposit in trust;
      3. A creditor, claimant, or payee, for other property; and
      4. The lawful bearer of a record that may be used to obtain money, a reward, or a thing of value;
  22. “Payroll card” means a record that evidences a payroll card account as defined in 12 C.F.R. pt. 1005, as amended;
  23. “Person” means an individual, estate, business association, public corporation, government or governmental subdivision, agency, or instrumentality or other legal entity;
  24. “Property”:
    1. Means tangible property described in KRS 393A.080 or a fixed and certain interest in intangible property held, issued, or owed in the course of a holder’s business or by a government, governmental subdivision, agency, or instrumentality;
    2. Includes all income from or increments to the property;
    3. Includes property referred to as or evidenced by:
      1. Money, virtual currency, interest, or a dividend, check, draft, deposit, or payroll card;
      2. A credit balance, customer’s overpayment, stored-value card, security deposit, refund, credit memorandum, unpaid wage, unused ticket for which the issuer has an obligation to provide a refund, mineral proceeds, or unidentified remittance;
      3. A security, except for:
        1. A worthless security; or
        2. A security that is subject to a lien, legal hold, or restriction evidenced on the records of the holder or imposed by operation of law, if the lien, legal hold, or restriction restricts the holder’s or owner’s ability to receive, transfer, sell, or otherwise negotiate the security;
      4. A bond, debenture, note, or other evidence of indebtedness;
      5. Money deposited to redeem a security, make a distribution, or pay a dividend;
      6. An amount due and payable under an annuity contract or insurance policy; and
      7. An amount distributable from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit-sharing, employee-savings, supplemental-unemployment insurance, or a similar benefit; and
    4. Does not include:
      1. Property held in a plan described in 26 U.S.C. sec. 529 A, as amended;
      2. Game-related digital content;
      3. A loyalty card;
      4. An in-store credit for returned merchandise; or
      5. A gift card;
  25. “Putative holder” means a person believed by the administrator to be a holder, until the person pays or delivers to the administrator property subject to this chapter or the administrator or a court makes a final determination that the person is or is not a holder;
  26. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
  27. “Security” means:
    1. A security as defined in KRS 355.8-102;
    2. A security entitlement as defined in KRS 355.8-102, including a customer security account held by a registered broker-dealer, to the extent the financial assets held in the security account are not:
      1. Registered on the books of the issuer in the name of the person for which the broker-dealer holds the assets;
      2. Payable to the order of the person; or
      3. Specifically indorsed to the person; and
    3. An equity interest in a business association not included in paragraph (a) or (b) of this subsection;
  28. “Sign” means, with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process;
  29. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States;
  30. “Stored-value card”:
    1. Means a record evidencing a promise made for consideration by the seller or issuer of the record that goods, services, or money will be provided to the owner of the record to the value or amount shown in the record;
    2. Includes a:
      1. Record that contains or consists of a microprocessor chip, magnetic strip, or other means for the storage of information, which is prefunded and whose value or amount is decreased on each use and increased by payment of additional consideration;
      2. Gift card; and
      3. Payroll card; and
    3. Does not include a loyalty card or game-related digital content;
  31. “Utility” means a person that owns or operates for public use a plant, equipment, real property, franchise, or license for the following public services:
    1. Transmission of communications or information;
    2. Production, storage, transmission, sale, delivery, or furnishing of electricity, water, steam, or gas; or
    3. Provision of sewage or septic services, or trash, garbage, or recycling disposal;
  32. “Virtual currency”:
    1. Means a digital representation of value used as a medium of exchange, unit of account, or store of value, which does not have legal tender status recognized by the United States; and
    2. Does not include:
      1. The software or protocols governing the transfer of the digital representation of value;
      2. Game-related digital content; or
      3. Loyalty card; and
  33. “Worthless security” means a security whose cost of liquidation and delivery to the administrator would exceed the value of the security on the date a report is due under this chapter.

HISTORY: 2018 ch. 163, § 1, effective July 14, 2018.

393A.020. Inapplicability to foreign transaction.

This chapter shall not apply to:

  1. Property held, due, and owing in a foreign country if the transaction out of which the property arose was a foreign transaction;
  2. Money, funds, or any other intangible property held by or owing:
    1. To a nonprofit exempt under Section 501(c)(3) of the Internal Revenue Code;
    2. For any minerals or other raw materials capable of being used for fuel in the course of manufacturing, processing, production, or mining; or
    3. For any mineral proceeds;
  3. Wages or salaries of fifty dollars ($50) or less that are not claimed by an employee within one (1) year of the date the wages or salaries are earned, unless the amounts are held on a payroll card;
  4. Moneys in inmate accounts and prisoner canteen accounts held by jailer under KRS 441.137 ; or
  5. Funds held in a lawyer IOLTA trust account under Supreme Court Rule 3.830.

HISTORY: 2018 ch. 163, § 2, effective July 14, 2018; 2019 ch. 125, § 3, effective June 27, 2019.

393A.030. Administrative regulations.

The administrator may promulgate administrative regulations under KRS Chapter 13A to implement and administer this chapter. In promulgating the administrative regulations, the administrator shall use the most cost-effective methods available for the submission of reports to the administrator and the notice and advertisement of property transferred to the administrator.

HISTORY: 2018 ch. 163, § 3, effective July 14, 2018.

393A.035. Unclaimed property trust fund.

  1. The unclaimed property trust fund is established in the Treasury of the Commonwealth.
  2. The trust fund shall be administered by the Finance and Administration Cabinet and all money in excess of the amount to be disbursed in a given fiscal year shall be invested to maximize returns.
  3. The trust fund shall consist of moneys received from appropriations, gifts, grants, federal funds, or moneys received on or after July 1, 2020.
  4. Interest earnings of the fund shall accrue to the trust fund, except to the extent that on July 1 of any fiscal year, if the trust fund has a balance which exceeds one hundred million dollars ($100,000,000), the interest earnings of the fund shall accrue to the general fund.
  5. Notwithstanding KRS 45.229 and except as provided by subsection (4) of this section, moneys deposited in the fund shall become a part of the fund and shall not lapse.
  6. Nothing in this section shall be interpreted to prohibit the General Assembly from appropriating funds to:
    1. The Department of the Treasury; or
    2. The unclaimed property trust fund.

HISTORY: 2019 ch. 63, § 1, effective June 27, 2019.

Presumption of Abandonment

393A.040. When property presumed abandoned.

Subject to KRS 393A.120 , the following property shall be presumed abandoned if it is unclaimed by the apparent owner during the period specified below:

  1. A traveler’s check, fifteen (15) years after issuance;
  2. A money order, seven (7) years after issuance;
  3. A state or municipal bond, bearer bond, or original-issue-discount bond, three (3) years after the earliest of the date the bond matures or is called or the obligation to pay the principal of the bond arises;
  4. A debt of a business association, three (3) years after the obligation to pay arises;
  5. A payroll card or demand, savings, or time deposit account, including a deposit that is automatically renewable, three (3) years after the maturity of the deposit, except a deposit that is automatically renewable is deemed matured on its initial date of maturity unless the apparent owner consented in a record on file with the holder to renewal at or about the time of the renewal, except:
    1. Property held in an interest-bearing, demand, savings, or time deposit account shall, from the time it is presumed abandoned under this chapter, be placed by the holder in an interest-bearing account made assignable to the administrator;
    2. The administrator may examine the records of the holder relevant to the establishment and maintenance of an interest-bearing account in accordance with this chapter;
    3. Upon demand and proper proof by a person appearing entitled to payment of property described in this subsection, the holder may withdraw the property and any accrued interest for payment to the entitled person;
    4. Property described in this subsection deposited and not claimed ten (10) years after it is presumed abandoned, or upon actual abandonment, shall be paid to the administrator upon whichever abandonment occurs first; and
    5. The administrator shall not be required to credit interest on any property described in this subsection after the property is received under paragraph (d) of this subsection;
  6. Money or a credit owed to a customer as a result of a retail business transaction, other than in-store credit for returned merchandise, three (3) years after the obligation arose;
  7. An amount owed by an insurance company on a life or endowment insurance policy or an annuity contract that has matured or terminated, three (3) years after the obligation to pay arose under the terms of the policy or contract or, if a policy or contract for which an amount is owed on proof of death has not matured by proof of the death of the insured or annuitant, as follows:
    1. With respect to an amount owed on a life or endowment insurance policy, three (3) years after the earlier of the date:
      1. The insurance company has knowledge of the death of the insured; or
      2. The insured has attained, or would have attained if living, the limiting age under the mortality table on which the reserve for the policy is based; and
    2. With respect to an amount owed on an annuity contract, three (3) years after the date the insurance company has knowledge of the death of the annuitant;
  8. Property distributable by a business association in the course of dissolution, one (1) year after the property becomes distributable;
  9. Property held by a court, including property received as proceeds of a class action, may be paid to the administrator one (1) year after the property becomes distributable, but shall be paid to the administrator no later than five (5) years after the property becomes distributable;
  10. Property held by a government or governmental subdivision, agency, or instrumentality, including municipal bond interest and unredeemed principal under the administration of a paying agent or indenture trustee, one (1) year after the property becomes distributable;
  11. Property payable or distributable in the course of a demutualization of an insurance company, three (3) years after the earlier of the last contact with the policyholder, or the date the property became payable or distributable;
  12. Wages, commissions, bonuses, or reimbursements to which an employee is entitled, or other compensation for personal services, other than amounts held in a payroll card, one (1) year after the amount becomes payable;
  13. A deposit or refund owed to a subscriber by a utility, one (1) year after the deposit or refund becomes payable;
  14. All funds represented by unclaimed pari-mutual winning tickets held in this state by any person, association, or corporation operating a pari-mutual or similar system of betting at quarter horse or Appaloosa racetracks, two (2) years from the time the ticket became payable; and
  15. Property not specified in KRS 393A.050 , 393A.060 , 393A.070 , 393A.080 , 393A.090 , or 393A.100 , the earlier of three (3) years after the owner first has a right to demand the property or the obligation to pay or distribute the property arises.

HISTORY: 2018 ch. 163, § 4, effective July 14, 2018.

393A.050. When tax-deferred retirement account presumed abandoned.

  1. Subject to KRS 393A.120 , property held in a pension account or retirement account that qualifies for tax deferral under the income-tax laws of the United States shall be presumed abandoned if it is unclaimed by the apparent owner three (3) years after the later of:
    1. The following dates:
      1. Except as provided in subparagraph 2. of this paragraph, the date a second consecutive communication sent by the holder by first-class United States mail to the apparent owner is returned to the holder undelivered by the United States Postal Service; or
      2. If the second communication is sent later than thirty (30) days after the date the first communication is returned undelivered, the date the first communication was returned undelivered by the United States Postal Service; or
    2. The earlier of the following dates:
      1. The date the apparent owner becomes seventy and one-half (70 1/2) years of age, if determinable by the holder; or
      2. If 26 U.S.C. secs. 1 et seq., as amended, requires distribution to avoid a tax penalty, two (2) years after the date the holder:
        1. Receives confirmation of the death of the apparent owner in the ordinary course of its business; or
        2. Confirms the death of the apparent owner under subsection (2) of this section.
  2. If a holder in the ordinary course of its business receives notice or an indication of the death of an apparent owner and subsection (1)(b) of this section applies, the holder shall attempt not later than ninety (90) days after receipt of the notice or indication to confirm whether the apparent owner is deceased.
  3. If the holder does not send communications to the apparent owner of an account described in subsection (1) of this section by first-class United States mail, the holder shall attempt to confirm the apparent owner’s interest in the property by sending the apparent owner an electronic-mail communication not later than two (2) years after the apparent owner’s last indication of interest in the property. However, the holder promptly shall attempt to contact the apparent owner by first-class United States mail if:
    1. The holder does not have information needed to send the apparent owner an electronic-mail communication or the holder believes that the apparent owner’s electronic-mail address in the holder’s records is not valid;
    2. The holder receives notification that the electronic-mail communication was not received; or
    3. The apparent owner does not respond to the electronic-mail communication within thirty (30) days after the communication was sent.
  4. If first-class United States mail sent under subsection (3) of this section is returned to the holder undelivered by the United States Postal Service, the property shall be presumed abandoned three (3) years after the later of:
    1. Except as provided in paragraph (b) of this subsection, the date a second consecutive communication to contact the apparent owner sent by first-class United States mail is returned to the holder undelivered;
    2. If the second communication is sent later than thirty (30) days after the date the first communication is returned undelivered, the date the first communication was returned undelivered; or
    3. The date established by subsection (1)(b) of this section.

HISTORY: 2018 ch. 163, § 5, effective July 14, 2018.

393A.060. When other tax-deferred account presumed abandoned.

Subject to KRS 393A.120 and except for property described in KRS 393A.050 and property held in a plan described in 26 U.S.C. sec. 529 A, property held in an account or plan, including a health savings account, that qualifies for tax deferral under the income-tax laws of the United States shall be presumed abandoned if it is unclaimed by the apparent owner three (3) years after the earlier of:

  1. The date, if determinable by the holder, specified in the income-tax laws and regulations of the United States by which distribution of the property shall begin to avoid a tax penalty, with no distribution having been made; or
  2. Thirty (30) years after the date the account was opened.

HISTORY: 2018 ch. 163, § 6, effective July 14, 2018.

393A.070. When custodial account for minor presumed abandoned.

  1. Subject to KRS 393A.120 , property held in an account established under the Uniform Transfers to Minors Act, KRS 385.012 to 385.242 , shall be presumed abandoned if it is unclaimed by or on behalf of the minor on whose behalf the account was opened three (3) years after the later of:
    1. Except as provided in paragraph (b) of this subsection, the date a second consecutive communication sent by the holder by first-class United States mail to the custodian of the minor on whose behalf the account was opened is returned undelivered to the holder by the United States Postal Service;
    2. If the second communication is sent later than thirty (30) days after the date the first communication is returned undelivered, the date the first communication was returned undelivered; or
    3. The date on which the custodian is required to transfer the property to the minor or the minor’s estate in accordance with the Uniform Gifts to Minors Act or Uniform Transfers to Minors Act of the state in which the account was opened.
  2. If the holder does not send communications to the custodian of the minor on whose behalf an account described in subsection (1) of this section was opened by first-class United States mail, the holder shall attempt to confirm the custodian’s interest in the property by sending the custodian an electronic-mail communication not later than two (2) years after the custodian’s last indication of interest in the property. However, the holder promptly shall attempt to contact the custodian by first-class United States mail if:
    1. The holder does not have information needed to send the custodian an electronic-mail communication or the holder believes that the custodian’s electronic-mail address in the holder’s records is not valid;
    2. The holder receives notification that the electronic-mail communication was not received; or
    3. The custodian does not respond to the electronic-mail communication within thirty (30) days after the communication was sent.
  3. If first-class United States mail sent under subsection (2) of this section is returned undelivered to the holder by the United States Postal Service, the property shall be presumed abandoned three (3) years after the later of:
    1. The date a second consecutive communication to contact the custodian by first-class United States mail is returned to the holder undelivered by the United States Postal Service; or
    2. The date established by subsection (1)(c) of this section.
  4. When the property in the account described in subsection (1)(c) of this section is transferred to the minor on whose behalf an account was opened or to the minor’s estate, the property in the account shall no longer be subject to this section.

HISTORY: 2018 ch. 163, § 7, effective July 14, 2018.

393A.080. When contents of safe-deposit box presumed abandoned.

Tangible property held in a safe-deposit box and proceeds from a sale of the property by the holder permitted by law of this state other than this chapter are presumed abandoned if the property remains unclaimed by the apparent owner five (5) years after the earlier of the:

  1. Expiration of the lease or rental period for the box; or
  2. Earliest date when the lessor of the box is authorized by law of this state other than this chapter to enter the box and remove or dispose of the contents without consent or authorization of the lessee.

HISTORY: 2018 ch. 163, § 8, effective July 14, 2018.

393A.090. When stored-value card presumed abandoned.

  1. Subject to KRS 393A.120 , the net card value of a stored-value card, other than a payroll card or a gift card, shall be presumed abandoned on the latest of three (3) years after:
    1. December 31 of the year in which the card is issued or additional funds are deposited into it;
    2. The most recent indication of interest in the card by the apparent owner; or
    3. A verification or review of the balance by or on behalf of the apparent owner.
  2. The amount presumed abandoned in a stored-value card shall be the net card value at the time it is presumed abandoned.

HISTORY: 2018 ch. 163, § 9, effective July 14, 2018.

393A.100. When security presumed abandoned.

  1. Subject to KRS 393A.120 , a security shall be presumed abandoned three (3) years after:
    1. The date a second consecutive communication sent by the holder by first-class United States mail to the apparent owner is returned to the holder undelivered by the United States Postal Service; or
    2. If the second communication is made later than thirty (30) days after the first communication is returned, the date the first communication is returned undelivered to the holder by the United States Postal Service.
  2. If the holder does not send communications to the apparent owner of a security by first-class United States mail, the holder shall attempt to confirm the apparent owner’s interest in the security by sending the apparent owner an electronic-mail communication not later than two (2) years after the apparent owner’s last indication of interest in the security. However, the holder promptly shall attempt to contact the apparent owner by first-class United States mail if:
    1. The holder does not have information needed to send the apparent owner an electronic-mail communication or the holder believes that the apparent owner’s electronic-mail address in the holder’s records is not valid;
    2. The holder receives notification that the electronic-mail communication was not received; or
    3. The apparent owner does not respond to the electronic-mail communication within thirty (30) days after the communication was sent.
  3. If first-class United States mail sent under subsection (2) of this section is returned to the holder undelivered by the United States Postal Service, the security shall be presumed abandoned three (3) years after the date the mail is returned.

HISTORY: 2018 ch. 163, § 10, effective July 14, 2018.

393A.110. When related property presumed abandoned.

At and after the time property is presumed abandoned under this chapter, any other property right or interest accrued or accruing from the property and not previously presumed abandoned shall also be presumed abandoned.

HISTORY: 2018 ch. 163, § 11, effective July 14, 2018.

393A.120. Indication of apparent owner interest in property.

  1. The period after which property shall be presumed abandoned shall be measured from the later of:
    1. The date the property is presumed abandoned under this chapter; or
    2. The latest indication of interest by the apparent owner in the property.
  2. Under this chapter, an indication of an apparent owner’s interest in property includes:
    1. A record communicated by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held;
    2. An oral communication by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held, if the holder or its agent contemporaneously makes and preserves a record of the fact of the apparent owner’s communication;
    3. Presentment of a check or other instrument of payment of a dividend, interest payment, or other distribution, or evidence of receipt of a distribution made by electronic or similar means, with respect to an account, underlying security, or interest in a business association;
    4. Activity directed by an apparent owner in the account in which the property is held, including accessing the account or information concerning the account, or a direction by the apparent owner to increase, decrease, or otherwise change the amount or type of property held in the account;
    5. A deposit into or withdrawal from an account at a financial organization, including an automatic deposit or withdrawal previously authorized by the apparent owner other than an automatic reinvestment of dividends or interest;
    6. Subject to subsection (5) of this section, payment of a premium on an insurance policy; and
    7. Any other action by the apparent owner which reasonably demonstrates to the holder that the apparent owner knows that the property exists.
  3. An action by an agent or other representative of an apparent owner, other than the holder acting as the apparent owner’s agent, shall be presumed to be an action on behalf of the apparent owner.
  4. A communication with an apparent owner by a person other than the holder or the holder’s representative shall not be an indication of interest in the property by the apparent owner unless a record of the communication evidences the apparent owner’s knowledge of a right to the property.
  5. If the insured dies or the insured or beneficiary of an insurance policy otherwise becomes entitled to the proceeds before depletion of the cash surrender value of the policy by operation of an automatic-premium-loan provision or other nonforfeiture provision contained in the policy, the operation shall not prevent the policy from maturing or terminating.

HISTORY: 2018 ch. 163, § 12, effective July 14, 2018.

393A.130. Knowledge of death of insured or annuitant.

  1. As used in this section, “death master file” means the United States Social Security Administration Death Master File or other database or service that is at least as comprehensive as the United States Social Security Administration Death Master File for determining that an individual reportedly has died.
  2. With respect to a life or endowment insurance policy or annuity contract for which an amount is owed on proof of death, but which has not matured by proof of death of the insured or annuitant, the company has knowledge of the death of an insured or annuitant when:
    1. The company receives a death certificate or court order determining that the insured or annuitant has died;
    2. The company conducts a comparison for any purpose between a death master file and the names of some or all of the company’s insureds or annuitants, finds a match that provides notice that the insured or annuitant has died, and validates the death;
    3. The administrator or the administrator’s agent conducts a comparison for the purpose of finding matches during an examination conducted under KRS 393A.550 to 393A.650 between a death master file and the names of some or all of the company’s insureds or annuitants, finds a match that provides notice that the insured or annuitant has died, and the company validates the death; or
    4. The company:
      1. Receives notice of the death of the insured or annuitant from an administrator, beneficiary, policy owner, relative of the insured, or trustee or from a personal representative, executor, or other legal representative of the insured’s or annuitant’s estate; and
      2. Validates the death of the insured or annuitant.
  3. The following rules apply under this section:
    1. A death-master-file match under subsection (2)(b) or (c) of this section occurs if the criteria for an exact or partial match are satisfied as provided by KRS 304.15-420 ;
    2. The death-master-file match shall not constitute proof of death for the purpose of submission to an insurance company of a claim by a beneficiary, annuitant, or owner of the policy or contract for an amount due under an insurance policy or annuity contract; and
    3. The death-master-file match or validation of the insured’s or annuitant’s death shall not alter the requirements for a beneficiary, annuitant, or owner of the policy or contract to make a claim to receive proceeds under the terms of the policy or contract.

HISTORY: 2018 ch. 163, § 13, effective July 14, 2018.

393A.140. Deposit account for proceeds of life insurance policy or annuity contract.

If proceeds payable under a life or endowment insurance policy or annuity contract are deposited into an account with check or draft-writing privileges for the beneficiary of the policy or contract and, under a supplementary contract not involving annuity benefits other than death benefits, the proceeds are retained by the insurance company or the financial organization where the account is held, the policy or contract includes the assets in the account.

HISTORY: 2018 ch. 163, § 14, effective July 14, 2018.

Rules for Taking Custody of Property Presumed Abandoned

393A.150. Address of apparent owner to establish priority.

In KRS 393A.150 to 393A.210 :

  1. The last-known address of an apparent owner shall be any description, code, or other indication of the location of the apparent owner which identifies the state, even if the description, code, or indication of location shall not be sufficient to direct the delivery of first-class United States mail to the apparent owner;
  2. If the United States postal zip code associated with the apparent owner is for a post office located in this state, this state shall be deemed to be the state of the last-known address of the apparent owner unless other records associated with the apparent owner specifically identify the physical address of the apparent owner to be in another state;
  3. If the address under subsection (2) of this section is in another state, the other state shall be deemed to be the state of the last-known address of the apparent owner; and
  4. The address of the apparent owner of a life or endowment insurance policy or annuity contract or its proceeds shall be presumed to be the address of the insured or annuitant if a person other than the insured or annuitant is entitled to the amount owed under the policy or contract and the address of the other person is not known by the insurance company and cannot be determined under KRS 393A.160 .

HISTORY: 2018 ch. 163, § 15, effective July 14, 2018.

393A.160. Address of apparent owner in this state.

The administrator may take custody of property that is presumed abandoned, whether located in this state, another state, or a foreign country if:

  1. The last-known address of the apparent owner in the records of the holder is in this state; or
  2. The records of the holder do not reflect the identity or last-known address of the apparent owner, but the administrator has determined that the last-known address of the apparent owner is in this state.

HISTORY: 2018 ch. 163, § 16, effective July 14, 2018.

393A.170. If records show multiple addresses of apparent owner.

  1. Except as provided in subsection (2) of this section, if records of a holder reflect multiple addresses for an apparent owner and this state is the state of the most recently recorded address, this state may take custody of property presumed abandoned, whether located in this state or another state.
  2. If it appears from records of the holder that the most recently recorded address of the apparent owner under subsection (1) of this section is a temporary address and this state is the state of the next most recently recorded address that is not a temporary address, this state may take custody of the property presumed abandoned.

HISTORY: 2018 ch. 163, § 17, effective July 14, 2018.

393A.180. Holder domiciled in this state.

  1. Except as provided in subsection (2) of this section or KRS 393A.160 or 393A.170 , the administrator may take custody of property presumed abandoned, whether located in this state, another state, or a foreign country, if the holder is domiciled in this state or is this state or a governmental subdivision, agency, or instrumentality of this state, and:
    1. Another state or foreign country shall not be entitled to the property because there is no last-known address of the apparent owner or other person entitled to the property in the records of the holder; or
    2. The state or foreign country of the last-known address of the apparent owner or other person entitled to the property does not provide for custodial taking of the property.
  2. Property shall not be subject to the custody of the administrator under subsection (1) of this section if the property is specifically exempt from custodial taking under the law of this state or the state or foreign country of the last-known address of the apparent owner.
  3. If a holder’s state of domicile has changed since the time property was presumed abandoned, the holder’s state of domicile in this section shall be deemed to be the state where the holder was domiciled at the time the property was presumed abandoned.

HISTORY: 2018 ch. 163, § 18, effective July 14, 2018.

393A.190. Custody if transaction took place in this state.

Except as in KRS 393A.160 , 393A.170 , or 393A.180 , the administrator may take custody of property presumed abandoned whether located in this state or another state if:

  1. The transaction out of which the property arose took place in this state;
  2. The holder is domiciled in a state that does not provide for the custodial taking of the property, except that if the property is specifically exempt from custodial taking under the law of the state of the holder’s domicile, the property shall not be subject to the custody of the administrator; and
  3. The last-known address of the apparent owner or other person entitled to the property is unknown or in a state that does not provide for the custodial taking of the property, except that if the property is specifically exempt from custodial taking under the law of the state of the last-known address, the property shall not be subject to the custody of the administrator.

HISTORY: 2018 ch. 163, § 19, effective July 14, 2018.

393A.200. Traveler’s check, money order, or similar instrument.

The administrator may take custody of sums payable on a traveler’s check, money order, or similar instrument presumed abandoned to the extent permissible under 12 U.S.C. secs. 2501 to 2503, as amended.

HISTORY: 2018 ch. 163, § 20, effective July 14, 2018.

393A.210. Burden of proof to establish administrator’s right to custody.

If the administrator asserts a right to custody of unclaimed property, the administrator has the burden to prove:

  1. The existence and amount of the property;
  2. The property shall be presumed abandoned; and
  3. The property shall be subject to the custody of the administrator.

HISTORY: 2018 ch. 163, § 21, effective July 14, 2018.

Report by Holder

393A.220. Report required by holder.

  1. A holder of property presumed abandoned and subject to the custody of the administrator shall report in a record to the administrator concerning the property. A holder shall not be required to file a report if the holder has no property that is presumed abandoned. The administrator shall not require a holder to file a paper report.
  2. A holder may contract with a third party to make the report required under subsection (1) of this section.
  3. Whether or not a holder contracts with a third party under subsection (2) of this section, the holder shall be responsible:
    1. To the administrator for the complete, accurate, and timely reporting of property presumed abandoned; and
    2. For paying or delivering to the administrator property described in the report.

HISTORY: 2018 ch. 163, § 22, effective July 14, 2018.

393A.230. Content of report.

  1. The report required under KRS 393A.220 shall:
    1. Be signed by or on behalf of the holder and verified as to its completeness and accuracy;
    2. If filed electronically, be in a secure format approved by the administrator which protects confidential information of the apparent owner in the same manner as required of the administrator and the administrator’s agent under KRS 393A.770 to 393A.830 ;
    3. Describe the property;
    4. Except for a traveler’s check, money order, or similar instrument, contain the name, if known, last-known address, if known, and Social Security number or taxpayer identification number, if known or readily ascertainable, of the apparent owner of property with a value of fifty dollars ($50) or more;
    5. For an amount held or owing under a life or endowment insurance policy or annuity contract, contain the name and last-known address of the insured, annuitant, or other apparent owner of the policy or contract and of the beneficiary;
    6. For property held in or removed from a safe-deposit box, indicate the location of the property, where it may be inspected by the administrator, and any amounts owed to the holder under KRS 393A.360 ;
    7. Contain the commencement date for determining abandonment under KRS 393A.040 to 393A.140 ;
    8. State that the holder has complied with the notice requirements of KRS 393A.270 ;
    9. Identify property that is a non-freely transferable security and explain why it is a non-freely transferable security; and
    10. Contain other information the administrator prescribes.
  2. A report under KRS 393A.220 may include in the aggregate items valued under fifty dollars ($50) each. If the report includes items in the aggregate valued under fifty dollars ($50) each, the administrator shall not require the holder to provide the name and address of an apparent owner of an item unless the information is necessary to verify or process a claim in progress by the apparent owner.
  3. A report under KRS 393A.220 may include personal information as described in KRS 393A.780(1) about the apparent owner or the apparent owner’s property to the extent not otherwise prohibited by federal law.
  4. If a holder has changed its name while holding property presumed abandoned or is a successor to another person that previously held the property for the apparent owner, the holder shall include in the report under KRS 393A.220 its former name or the name of the previous holder, if any, and the known name and address of each previous holder of the property.

HISTORY: 2018 ch. 163, § 23, effective July 14, 2018.

393A.240. When report to be filed.

  1. Except as otherwise provided in subsection (2) of this section, and subject to subsection (3) of this section, the report under KRS 393A.220 shall be filed before November 1 of each year and cover the twelve (12) months preceding July 1 of that year.
  2. Subject to subsection (3) of this section, the report under KRS 393A.220 to be filed by an insurance company shall be filed before May 1 of each year for the immediately preceding calendar year.
  3. Before the date for filing the report under KRS 393A.220 , the holder of property presumed abandoned may request the administrator extend the time for filing. The administrator may grant an extension. If the extension is granted, the holder may pay or make a partial payment of the amount the holder estimates ultimately will be due. The payment or partial payment terminates accrual of interest on the amount paid.

HISTORY: 2018 ch. 163, § 24, effective July 14, 2018.

393A.250. Retention of records by holder.

A holder required to file a report KRS 393A.220 shall retain records for ten (10) years after the later of the date the report was filed or the last date a timely report was due to be filed, unless a shorter period shall be provided by rule of the administrator. The holder may satisfy the requirement to retain records under this section through an agent. The records shall contain:

  1. The information required to be included in the report;
  2. The date, place, and nature of the circumstances that gave rise to the property right;
  3. The amount or value of the property;
  4. The last address of the apparent owner, if known to the holder; and
  5. If the holder sells, issues, or provides to others for sale or issue in this state traveler’s checks, money orders, or similar instruments, other than third-party bank checks, on which the holder is directly liable, a record of the instruments while they remain outstanding indicating the state and date of issue.

HISTORY: 2018 ch. 163, § 25, effective July 14, 2018.

393A.260. Property reportable and payable or deliverable absent owner demand.

Property shall be reportable and payable or deliverable under this chapter even if the owner fails to make demand or present an instrument or document otherwise required to obtain payment.

HISTORY: 2018 ch. 163, § 26, effective July 14, 2018.

Notice to Apparent Owner of Property Presumed Abandoned

393A.270. Notice to apparent owner by holder.

  1. Subject to subsection (2) of this section, the holder of property presumed abandoned shall send to the apparent owner notice by first-class United States mail that complies with KRS 393A.280 in a format acceptable to the administrator not more than one hundred eighty (180) days nor less than sixty (60) days before filing the report under KRS 393A.220 if:
    1. The holder has in its records an address for the apparent owner which the holder’s records do not disclose to be invalid and is sufficient to direct the delivery of first-class United States mail to the apparent owner; and
    2. The value of the property is fifty dollars ($50) or more.
  2. If an apparent owner has consented to receive electronic-mail delivery from the holder, the holder shall send the notice described in subsection (1) of this section both by first-class United States mail to the apparent owner’s last-known mailing address and by electronic mail, unless the holder believes that the apparent owner’s electronic-mail address is invalid.

HISTORY: 2018 ch. 163, § 27, effective July 14, 2018.

393A.280. Contents of notice by holder.

  1. Notice under KRS 393A.270 shall contain a heading that reads substantially as follows: “Notice. The Commonwealth of Kentucky requires us to notify you that your property may be transferred to the custody of the Kentucky State Treasurer if you do not contact us before (insert date that is thirty (30) days after the date of this notice).”
  2. The notice under KRS 393A.270 shall:
    1. Identify the nature and, except for property that does not have a fixed value, the value of the property that is the subject of the notice;
    2. State that the property shall be turned over to the administrator;
    3. State that after the property is turned over to the administrator, an apparent owner that seeks return of the property shall file a claim with the administrator;
    4. State that property that is not legal tender of the United States may be sold by the administrator; and
    5. Provide instructions that the apparent owner shall follow to prevent the holder from reporting and paying or delivering the property to the administrator.

HISTORY: 2018 ch. 163, § 28, effective July 14, 2018.

393A.290. Notice by administrator.

  1. The administrator shall give notice to an apparent owner that property presumed abandoned and appears to be owned by the apparent owner shall be held by the administrator under this chapter.
  2. In providing notice under subsection (1) of this section, the administrator shall:
    1. Not be required to use newspaper publication to provide notice; and
    2. Maintain a Web site or database accessible by the public and electronically searchable that contains the names reported to the administrator of all apparent owners for whom property is being held by the administrator.
  3. The Web site or database maintained under subsection (2)(b) of this section shall include instructions for filing with the administrator a claim to property and a printable claim form with instructions for its use.
  4. In addition to giving notice under subsection (2) of this section, the administrator may use printed publication, telecommunication, the Internet, or other media to inform the public of the existence of unclaimed property held by the administrator.

HISTORY: 2018 ch. 163, § 29, effective July 14, 2018.

393A.300. Cooperation among state officers and agencies to locate apparent owner.

Unless prohibited by law other than this chapter, on request of the administrator, each officer, agency, board, commission, division, and department of this state, any body politic and corporate created by this state for a public purpose, and each political subdivision of this state shall make its books and records available to the administrator and cooperate with the administrator to determine the current address of an apparent owner of property held by the administrator under this chapter.

HISTORY: 2018 ch. 163, § 30, effective July 14, 2018.

Taking Custody of Property by Administrator

393A.310. Definition of good faith.

In KRS 393A.310 to 393A.390 , payment or delivery of property shall be made in good faith if a holder:

  1. Had a reasonable basis for believing, based on the facts then known, that the property was required or permitted to be paid or delivered to the administrator under this chapter; or
  2. Made payment or delivery:
    1. In response to a demand by the administrator or administrator’s agent; or
    2. Under a guidance or ruling issued by the administrator which the holder reasonably believed required or permitted the property to be paid or delivered.

HISTORY: 2018 ch. 163, § 31, effective July 14, 2018.

393A.320. Dormancy charge.

  1. A holder may deduct a dormancy charge from property required to be paid or delivered to the administrator if:
    1. A valid contract between the holder and the apparent owner authorizes imposition of the charge for the apparent owner’s failure to claim the property within a specified time; and
    2. The holder regularly imposes the charge and regularly does not reverse or otherwise cancel the charge.
  2. The amount of the deduction under subsection (1) of this section shall be limited to an amount that shall not be unconscionable considering all relevant factors, including the marginal transactional costs incurred by the holder in maintaining the apparent owner’s property and any services received by the apparent owner.

HISTORY: 2018 ch. 163, § 32, effective July 14, 2018.

393A.330. Payment or delivery of property to administrator.

  1. Except as otherwise provided in this section, on filing a report under KRS 393A.220 , the holder shall pay or deliver to the administrator the property described in the report.
  2. If property in a report under KRS 393A.220 is an automatically renewable deposit and a penalty or forfeiture in the payment of interest would result from paying the deposit to the administrator at the time of the report, the date for payment of the property to the administrator is extended until a penalty or forfeiture no longer would result from payment, if the holder informs the administrator of the extended date.
  3. Tangible property in a safe-deposit box shall not be delivered to the administrator until one hundred twenty (120) days after filing the report under KRS 393A.220 .
  4. If property reported to the administrator under KRS 393A.220 is a security, the administrator may:
    1. Make an endorsement, instruction, or entitlement order on behalf of the apparent owner to invoke the duty of the issuer, its transfer agent, or the securities intermediary to transfer the security; or
    2. Dispose of the security under KRS 393A.410 .
  5. If the holder of property reported to the administrator under KRS 393A.220 is the issuer of a certificated security, the administrator may obtain a replacement certificate in physical or book-entry form under KRS 355.8-405. An indemnity bond shall not be required.
  6. The administrator shall establish procedures for the registration, issuance, method of delivery, transfer, and maintenance of securities delivered to the administrator by a holder.
  7. An issuer, holder, and transfer agent or other person acting under this section under instructions of and on behalf of the issuer or holder shall not be liable to the apparent owner for, and shall be indemnified by the state against, a claim arising with respect to property after the property has been delivered to the administrator.
  8. A holder shall not be required to deliver to the administrator a security identified by the holder as a non-freely transferable security. If the administrator or holder determines that a security is no longer a non-freely transferable security, the holder shall deliver the security on the next regular date prescribed for delivery of securities under this chapter. The holder shall make a determination annually whether a security identified in a report filed under KRS 393A.220 as a non-freely transferable security is no longer a non-freely transferable security.
    1. If property reported to the administrator is virtual currency, the holder shall liquidate the virtual currency and remit the proceeds to the administrator. (9) (a) If property reported to the administrator is virtual currency, the holder shall liquidate the virtual currency and remit the proceeds to the administrator.
    2. The liquidation shall occur anytime within ninety (90) days prior to the filing of the report under KRS 393A.220 .
    3. The owner shall not have recourse against the holder or the administrator to recover any gain in value that occurs after the liquidation of the virtual currency under this subsection.

HISTORY: 2018 ch. 163, § 33, effective July 14, 2018; 2019 ch. 125, § 4, effective June 27, 2019.

393A.340. Effect of payment or delivery of property to administrator.

  1. On payment or delivery of property to the administrator under this chapter, the administrator as agent for the state assumes custody and responsibility for safekeeping the property. A holder that pays or delivers property to the administrator in good faith and substantially complies with KRS 393A.270 and 393A.280 shall be relieved of liability arising thereafter with respect to payment or delivery of the property to the administrator.
  2. This state shall defend and indemnify a holder against liability on a claim against the holder resulting from the payment or delivery of property to the administrator made in good faith and after the holder substantially complied with KRS 393A.270 and 393A.280 .

HISTORY: 2018 ch. 163, § 34, effective July 14, 2018.

393A.350. Recovery of property by holder from administrator.

  1. A holder that pays money to the administrator under this chapter may file a claim for reimbursement from the administrator of the amount paid if the holder:
    1. Paid the money in error; or
    2. After paying the money to the administrator, paid money to a person the holder reasonably believed to be entitled to the money.
  2. If a claim for reimbursement under subsection (1) of this section is made for a payment made on a negotiable instrument, including a traveler’s check, money order, or similar instrument, the holder shall submit proof that the instrument was presented and payment was made to a person the holder reasonably believed entitled to payment. The holder may claim reimbursement even if the payment was made to a person whose claim was made after expiration of a period of limitation on the owner’s right to receive or recover property, whether specified by contract, statute, or court order.
  3. A holder that delivers property other than money to the administrator under this chapter may file a claim under KRS 393A.510 for return of the property from the administrator if:
    1. The holder delivered the property in error; or
    2. The apparent owner has claimed the property from the holder.
  4. If a claim for return of property under subsection (3) of this section is made, the holder shall include with the claim evidence sufficient to establish that the apparent owner has claimed the property from the holder or that the property was delivered by the holder to the administrator in error.
  5. The administrator may determine that an affidavit submitted by a holder is evidence sufficient to establish that the holder shall be entitled to reimbursement or to recover property under this section.
  6. A holder shall not be required to pay a fee or other charge for reimbursement or return of property under this section.
  7. Not later than ninety (90) days after a claim is filed under subsection (1) or (3) of this section, the administrator shall allow or deny the claim and give the claimant notice of the decision in a record. If the administrator does not take action on a claim during the ninety (90) day period, the claim shall be deemed denied.
  8. The claimant may initiate a proceeding under KRS Chapter 13B for review of the administrator’s decision or the deemed denial under subsection (7) of this section not later than:
    1. Thirty (30) days following receipt of the notice of the administrator’s decision; or
    2. One hundred twenty (120) days following the filing of a claim under subsection (1) or (3) of this section in the case of a deemed denial under subsection (7) of this section.
  9. A final decision in an administrative proceeding initiated under subsection (8) of this section shall be subject to judicial review under KRS Chapter 13B.

HISTORY: 2018 ch. 163, § 35, effective July 14, 2018.

393A.360. Property removed from safe-deposit box.

Property removed from a safe-deposit box and delivered under this chapter to the administrator shall be subject to the holder’s right to reimbursement for the cost of opening the box and a lien or contract providing reimbursement to the holder for unpaid rent charges for the box. The administrator shall reimburse the holder from the proceeds remaining after deducting the expense incurred by the administrator in selling the property.

HISTORY: 2018 ch. 163, § 36, effective July 14, 2018.

393A.370. Administrator’s options as to custody.

  1. The administrator may decline to take custody of property reported under KRS 393A.220 if the administrator determines that:
    1. The property has a value less than the estimated expenses of notice and sale of the property; or
    2. Taking custody of the property would be unlawful.
  2. A holder may pay or deliver property to the administrator before the property shall be presumed abandoned under this chapter if the holder:
    1. Sends the apparent owner of the property notice required by KRS 393A.270 and provides the administrator evidence of the holder’s compliance with this paragraph;
    2. Includes with the payment or delivery a report regarding the property conforming to KRS 393A.230 ; and
    3. First obtains the administrator’s consent in a record to accept payment or delivery.
  3. A holder’s request for the administrator’s consent under subsection (2)(c) of this section shall be in a record. If the administrator fails to respond to the request not later than thirty (30) days after receipt of the request, the administrator shall be deemed to consent to the payment or delivery of the property and the payment or delivery shall be considered to have been made in good faith.
  4. On payment or delivery of property under subsection (2) of this section, the property shall be presumed abandoned.

HISTORY: 2018 ch. 163, § 37, effective July 14, 2018.

393A.380. Disposition of property having no substantial value — Immunity from liability.

  1. If the administrator takes custody of property delivered under this chapter and later determines that the property has no substantial commercial value or that the cost of disposing of the property will exceed the value of the property, the administrator may return the property to the holder or destroy or otherwise dispose of the property.
  2. In disposing of property under subsection (1) of this section, the administrator may deliver the property to the Kentucky Historical Society, or any other museum, historical society, or organization approved by the administrator, and on such terms as the administrator deems appropriate. Upon delivery of the property to a third party described in this subsection, the administrator shall no longer be responsible for the safekeeping of the property.
  3. An action or proceeding shall not be commenced against the state, an agency of the state, the administrator, another officer, employee, or agent of the state, or a holder for or because of an act of the administrator under this section, except for intentional misconduct or malfeasance.

HISTORY: 2018 ch. 163, § 38, effective July 14, 2018.

393A.390. Periods of limitation and repose.

  1. Expiration, before, on, or after July 14, 2018, of a period of limitation on an owner’s right to receive or recover property, whether specified by contract, statute, or court order, shall not prevent the property from being presumed abandoned or affect the duty of a holder under this chapter to file a report or pay or deliver property to the administrator.
  2. The administrator shall not commence an action or proceeding to enforce this chapter with respect to the reporting, payment, or delivery of property more than five (5) years after the holder filed a non-fraudulent report under KRS 393A.220 with the administrator. The parties may agree in a record to extend the limitation in this subsection.
  3. The administrator shall not commence an action, proceeding, or examination with respect to a duty of a holder under this chapter more than ten (10) years after the duty arose.

HISTORY: 2018 ch. 163, § 39, effective July 14, 2018.

Sale of Property by Administrator

393A.400. Public sale of property.

  1. Subject to KRS 393A.410 , the administrator may sell the property no earlier than three (3) years after receipt of property presumed abandoned.
  2. Before selling property under subsection (1) of this section, the administrator shall give notice to the public of:
    1. The date of the sale; and
    2. A reasonable description of the property.
  3. A sale under subsection (1) of this section shall be to the highest bidder:
    1. At public sale at a location in this state which the administrator determines to be the most favorable market for the property;
    2. On the Internet; or
    3. On another forum the administrator determines is likely to yield the highest net proceeds of sale.
  4. The administrator may decline the highest bid at a sale under this section and reoffer the property for sale if the administrator determines the highest bid is insufficient.
  5. If a sale held under this section is to be conducted other than on the Internet, the administrator shall publish at least one (1) notice of the sale, at least three (3) weeks but not more than five (5) weeks before the sale, in a newspaper of general circulation in the county in which the property is sold.

HISTORY: 2018 ch. 163, § 40, effective July 14, 2018.

393A.410. Disposal of securities.

  1. The administrator shall not sell or otherwise liquidate a security until three (3) years after the administrator receives the security and gives the apparent owner notice under KRS 393A.290 that the administrator holds the security.
  2. The administrator shall not sell a security listed on an established stock exchange for less than the price prevailing on the exchange at the time of sale. The administrator may sell a security not listed on an established exchange by any commercially reasonable method.

HISTORY: 2018 ch. 163, § 41, effective July 14, 2018.

393A.420. Recovery of securities or value by owner.

  1. If securities are sold by the administrator before the expiration of three (3) years after their delivery to the administrator, a person making a claim under this chapter before the end of the three (3) year period shall be entitled to the proceeds of the sale of the securities or the market value of the securities at the time the claim is made, plus dividends, interest, and other increments up to the time the claim is made, less any deduction for expenses of the sale.
  2. A person making a claim under this chapter after the expiration of the three (3) year period shall be entitled to receive the securities delivered to the administrator by the holder, if the securities remain in the custody of the administrator, or the net proceeds received from the sale, and shall not be entitled to receive any appreciation in the value of the property occurring after the delivery to the administrator.

HISTORY: 2018 ch. 163, § 42, effective July 14, 2018.

393A.430. Purchaser owns property after sale.

A purchaser of property at a sale conducted by the administrator under this chapter takes the property free of all claims of the owner, a previous holder, or a person claiming through the owner or holder. The administrator shall execute documents necessary to complete the transfer of ownership to the purchaser.

HISTORY: 2018 ch. 163, § 43, effective July 14, 2018.

393A.440. Military medal or decoration.

  1. The administrator shall not sell a medal or decoration awarded for military service in the Armed Forces of the United States.
  2. The administrator, with the consent of the respective organization under paragraphs (a) to (c) of this subsection, may deliver a medal or decoration described in subsection (1) of this section to be held in custody for the owner, to:
    1. A military veterans organization qualified under 26 U.S.C. sec. 501(c)(19) ;
    2. The agency that awarded the medal or decoration;
    3. The Kentucky Historical Society, or any museum or historical society approved by the administrator; or
    4. A governmental entity.
  3. On delivery under subsection (2) of this section, the administrator shall not be responsible for safekeeping the medal or decoration.

HISTORY: 2018 ch. 163, § 44, effective July 14, 2018.

Deposit of Funds by Administrator

393A.450. Deposit of funds by administrator.

The administrator shall deposit in the State Treasury all funds received under this chapter, including proceeds from the sale of property under KRS 393A.400 to 393A.440 .

HISTORY: 2018 ch. 163, § 45, effective July 14, 2018.

393A.460. Administrator to retain records of property.

The administrator shall:

  1. Record and retain the name and last-known address of each person shown on a report filed under KRS 393A.220 to be the apparent owner of property delivered to the administrator;
  2. Record and retain the name and last-known address of each insured or annuitant and beneficiary shown on the report;
  3. For each policy of insurance or annuity contract listed in the report of an insurance company, record and retain the policy or account number, the name of the company, and the amount due or paid; and
  4. For each apparent owner listed in the report, record and retain the name of the holder that filed the report and the amount due or paid.

HISTORY: 2018 ch. 163, § 46, effective July 14, 2018.

393A.470. Expenses and service charges of administrator.

  1. In addition to the expenses permitted under KRS 393.250 , the administrator may deduct:
    1. Expenses of disposition of property delivered to the administrator under this chapter;
    2. Costs of mailing and publication in connection with property delivered to the administrator under this chapter;
    3. Reasonable service charges; and
    4. Expenses incurred in examining records of or collecting property from a putative holder or holder.
  2. In addition to any expenses in subsection (1) of this section, the administrator shall deduct the proportionate costs of advertisement and operations from the amount of any claim allowed in an amount greater than ten dollars ($10). The administrator shall deduct at least one dollar ($1).

HISTORY: 2018 ch. 163, § 47, effective July 14, 2018.

393A.480. Administrator holds property as custodian for owner.

Property received by the administrator under this chapter shall be held in custody for the benefit of the owner and shall not be owned by the state.

HISTORY: 2018 ch. 163, § 48, effective July 14, 2018.

Claim to Recover Property from Administrator

393A.490. Claim of another state to recover property.

  1. If the administrator knows that property held by the administrator under this chapter is subject to a superior claim of another state, the administrator shall:
    1. Report and pay or deliver the property to the other state; or
    2. Return the property to the holder so that the holder may pay or deliver the property to the other state.
  2. The administrator shall not be required to enter into an agreement to transfer property to the other state under subsection (1) of this section.

HISTORY: 2018 ch. 163, § 49, effective July 14, 2018.

393A.500. When property subject to recovery by another state.

  1. Property held under this chapter by the administrator shall be subject to the right of another state to take custody of the property if:
    1. The property was paid or delivered to the administrator because the records of the holder did not reflect a last-known address in the other state of the apparent owner and:
      1. The other state establishes that the last-known address of the apparent owner or other person entitled to the property was in the other state; or
      2. Under the law of the other state, the property has become subject to a claim by the other state of abandonment;
    2. The records of the holder did not accurately identify the owner of the property, the last-known address of the owner was in another state, and, under the law of the other state, the property has become subject to a claim by the other state of abandonment;
    3. The property was subject to the custody of the administrator of this state under KRS 393A.190 and, under the law of the state of domicile of the holder, the property has become subject to a claim of abandonment by the state of domicile of the holder; or
    4. The property:
      1. Is a sum payable on a traveler’s check, money order, or similar instrument that was purchased in the other state and delivered to the administrator under KRS 393A.200 ; and
      2. Under the law of the other state, has become subject to a claim by the other state of abandonment.
  2. A claim by another state to recover property under this section shall be presented in a form prescribed by the administrator, unless the administrator waives presentation of the form.
  3. The administrator shall decide a claim under this section not later than ninety (90) days after it is presented. If the administrator determines that the other state is entitled under subsection (1) of this section to custody of the property, the administrator shall allow the claim and pay or deliver the property to the other state.
  4. The administrator may require another state, before recovering property under this section, to agree to indemnify this state and its agents, officers, and employees against any liability on a claim to the property.

HISTORY: 2018 ch. 163, § 50, effective July 14, 2018.

393A.510. Claim for property by person claiming to be owner.

  1. A person claiming to be the owner of property held under this chapter by the administrator may file a claim for the property on a form prescribed by the administrator. The claimant shall verify the claim as to its completeness and accuracy.
  2. The administrator may permit persons claiming to be the owner of property to submit claims in electronic format.
  3. The administrator may waive the requirement in subsection (1) of this section and may pay or deliver property directly to a person if:
    1. The person receiving the property or payment is shown to be the apparent owner included on a report filed under KRS 393A.220 ;
    2. The administrator reasonably believes the person is entitled to receive the property or payment; and
    3. The property has a value of less than two hundred fifty dollars ($250).

HISTORY: 2018 ch. 163, § 51, effective July 14, 2018.

393A.520. When administrator must honor claim for property.

  1. The administrator shall pay or deliver property to a claimant under KRS 393A.510(1) if the administrator receives evidence sufficient to establish to the satisfaction of the administrator that the claimant is the owner of the property.
  2. Not later than ninety (90) days after a claim is filed under KRS 393A.510(1), the administrator shall allow or deny the claim and give the claimant notice in a record of the decision.
  3. If the claim is denied under subsection (2) of this section:
    1. The administrator shall inform the claimant of the reason for the denial and specify what additional evidence, if any, is required for the claim to be allowed;
    2. The claimant may file an amended claim with the administrator or request an administrative hearing under KRS 393A.540 ; and
    3. The administrator shall consider an amended claim filed under paragraph (b) of this subsection as an initial claim.
  4. If the administrator does not take action on a claim during the ninety (90) day period following the filing of a claim under KRS 393A.510(1), the claim shall be deemed denied.

HISTORY: 2018 ch. 163, § 52, effective July 14, 2018.

393A.530. Allowance of claim for property.

  1. Not later than thirty (30) days after a claim is allowed under KRS 393A.520(2), the administrator shall pay or deliver to the owner the property or pay to the owner the net proceeds of a sale of the property. On request of the owner, the administrator may sell or liquidate a security and pay the net proceeds to the owner, even if the security had been held by the administrator for less than three (3) years or the administrator has not complied with the notice requirements under KRS 393A.410 .
  2. Property held under this chapter by the administrator shall be subject to a claim for the payment of an enforceable debt the owner owes in this state for:
    1. Child-support arrearages, including child-support collection costs and child-support arrearages that are combined with maintenance;
    2. A civil or criminal fine or penalty, court costs, a surcharge, or restitution imposed by a final order of an administrative agency or a final court judgment; or
    3. State or local taxes, penalties, and interest that have been determined to be delinquent or as to which notice has been recorded with the county sheriff or local taking authority.
  3. Before delivery or payment to an owner under subsection (1) of this section of property or payment to the owner of net proceeds of a sale of the property, the administrator first shall apply the property or net proceeds to a debt under subsection (2) of this section the administrator determines is owed by the owner. The administrator shall pay the amount to the appropriate state or local agency and notify the owner of the payment.
  4. The administrator may make periodic inquiries of state and local agencies in the absence of a claim filed under KRS 393A.510 to determine whether an apparent owner included in the unclaimed-property records of this state has enforceable debts described in subsection (2) of this section. The administrator first shall apply the property or net proceeds of a sale of property held by the administrator to a debt under subsection (2) of this section of an apparent owner which appears in the records of the administrator and deliver the amount to the appropriate state or local agency. The administrator shall notify the apparent owner of the payment.

HISTORY: 2018 ch. 163, § 53, effective July 14, 2018.

393A.540. Filing a claim under KRS 393A.510 — Request for administrative hearing.

Not later than one (1) year after filing a claim under KRS 393A.510(1), the claimant may request in writing an administrative hearing, to be conducted in accordance with KRS Chapter 13B.

HISTORY: 2018 ch. 163, § 54, effective July 14, 2018.

Verified Report of Property — Examination of Records

393A.550. Verified report of property.

If a person does not file a report required by KRS 393A.220 or the administrator believes that a person may have filed an inaccurate, incomplete, or false report, the administrator may require the person to file a verified report in a form prescribed by the administrator. The verified report shall:

  1. State whether the person is holding property reportable under this chapter;
  2. Describe property not previously reported or about which the administrator has inquired;
  3. Specifically identify property described under subsection (2) of this section about which there is a dispute whether it is reportable under this chapter; and
  4. State the amount or value of the property.

HISTORY: 2018 ch. 163, § 55, effective July 14, 2018.

393A.560. Examination of records to determine compliance.

The administrator, at reasonable times and on reasonable notice, may:

  1. Examine the records of a person, including examination of appropriate records in the possession of an agent of the person under examination, if the records are reasonably necessary to determine whether the person has complied with this chapter;
  2. Issue an administrative subpoena requiring the person or agent of the person to make records available for examination; and
  3. Bring an action seeking judicial enforcement of the subpoena.

HISTORY: 2018 ch. 163, § 56, effective July 14, 2018.

393A.570. Administrative regulations for conducting examination.

  1. The administrator shall promulgate administrative regulations in accordance with KRS Chapter 13A governing procedures and standards for an examination under KRS 393A.560 , including rules for use of an estimation, extrapolation, and statistical sampling in conducting an examination.
  2. An examination under KRS 393A.560 shall be performed under administrative regulations promulgated under subsection (1) of this section and with generally accepted examination practices and standards applicable to an unclaimed-property examination.
  3. If a person subject to examination under KRS 393A.560 has filed the reports required under KRS 393A.220 and 393A.550 and has retained the records required by KRS 393A.250 , the following shall apply to the examination:
    1. The examination shall include a review of the person’s records;
    2. The examination shall not be based on an estimate unless the person expressly consents in a record to the use of an estimate; and
    3. The person conducting the examination shall consider the evidence presented in good faith by the person in preparing the findings of the examination under KRS 393A.610 .

HISTORY: 2018 ch. 163, § 57, effective July 14, 2018.

393A.580. Records obtained in examination.

Records obtained and records, including work papers, compiled by the administrator in the course of conducting an examination under KRS 393A.560 :

  1. Shall be subject to the confidentiality and security provisions of KRS 393A.770 to 393A.830 and are not public records;
  2. May be used by the administrator in an action to collect property or otherwise enforce this chapter;
  3. May be used in a joint examination conducted with another state, the United States, a foreign country or subordinate unit of a foreign country, or any other governmental entity if the governmental entity conducting the examination is legally bound to maintain the confidentiality and security of information obtained from a person subject to examination in a manner substantially equivalent to KRS 393A.770 to 393A.830 ;
  4. Shall be disclosed, on request, to the person that administers the unclaimed property law of another state for that state’s use in circumstances equivalent to circumstances described in this KRS 393A.550 to 393A.650 , if the other state is required to maintain the confidentiality and security of information obtained in a manner substantially equivalent to KRS 393A.770 to 393A.830 ;
  5. Shall be produced by the administrator under an administrative or judicial subpoena or administrative or court order; and
  6. Shall be produced by the administrator on request of the person subject to the examination in an administrative or judicial proceeding relating to the property.

HISTORY: 2018 ch. 163, § 58, effective July 14, 2018.

393A.590. Evidence of unpaid debt or undischarged obligation.

  1. A record of a putative holder showing an unpaid debt or undischarged obligation shall be prima facie evidence of the debt or obligation.
  2. A putative holder may establish by a preponderance of the evidence that there is no unpaid debt or undischarged obligation for a debt or obligation described in subsection (1) of this section or that the debt or obligation was not, or no longer is, a fixed and certain obligation of the putative holder.
  3. A putative holder may overcome prima facie evidence under subsection (1) of this section by establishing by a preponderance of the evidence that a check, draft, or similar instrument was:
    1. Issued as an unaccepted offer in settlement of an unliquidated amount;
    2. Issued but later was replaced with another instrument because the earlier instrument was lost or contained an error that was corrected;
    3. Issued to a party affiliated with the issuer;
    4. Paid, satisfied, or discharged;
    5. Issued in error;
    6. Issued without consideration;
    7. Issued but there was a failure of consideration;
    8. Voided not later than ninety (90) days after issuance for a valid business reason set forth in a contemporaneous record; or
    9. Issued but not delivered to the third-party payee for a sufficient reason recorded within a reasonable time after issuance.
  4. In asserting a defense under this section, a putative holder may present evidence of a course of dealing between the putative holder and the apparent owner or of custom and practice.

HISTORY: 2018 ch. 163, § 59, effective July 14, 2018.

393A.600. Failure of person examined to retain records.

If a person subject to examination under KRS 393A.560 does not retain the records required by KRS 393A.250 , the administrator may determine the value of property due using a reasonable method of estimation based on all information available to the administrator, including extrapolation and use of statistical sampling when appropriate and necessary, consistent with examination procedures and standards adopted under KRS 393A.570 .

HISTORY: 2018 ch. 163, § 60, effective July 14, 2018.

393A.610. Report to person whose records were examined.

At the conclusion of an examination under KRS 393A.560 , the administrator shall provide to the person whose records were examined a complete and unredacted examination report that specifies:

  1. The work performed;
  2. The property types reviewed;
  3. The methodology of any estimation technique, extrapolation, or statistical sampling used in conducting the examination;
  4. Each calculation showing the value of property determined to be due; and
  5. The findings of the person conducting the examination.

HISTORY: 2018 ch. 163, § 61, effective July 14, 2018.

393A.620. Complaint to administrator about conduct of person conducting examination.

  1. If a person subject to examination under KRS 393A.560 believes the person conducting the examination has made an unreasonable or unauthorized request or is not proceeding expeditiously to complete the examination, the person in a record may ask the administrator to intervene and take appropriate remedial action, including countermanding the request of the person conducting the examination, imposing a time limit for completion of the examination, or reassigning the examination to another person.
  2. If a person in a record requests a conference with the administrator to present matters that are the basis of a request under subsection (1) of this section, the administrator shall hold the conference not later than thirty (30) days after receiving the request. The administrator may hold the conference in person, by telephone, or by electronic means.
  3. If a conference is held under subsection (2) of this section, not later than thirty (30) days after the conference ends, the administrator shall provide a report in a record of the conference to the person that requested the conference.

HISTORY: 2018 ch. 163, § 62, effective July 14, 2018.

393A.630. Administrator’s contract with another to conduct examination.

  1. As used in this section, “related to the administrator” means an individual who is:
    1. The administrator’s spouse, partner in a civil union, domestic partner, or reciprocal beneficiary;
    2. The administrator’s child, stepchild, grandchild, parent, stepparent, sibling, stepsibling, half-sibling, aunt, uncle, niece, or nephew;
    3. A spouse, partner in a civil union, domestic partner, or reciprocal beneficiary of an individual in paragraph (b) of this subsection; or
    4. Any individual residing in the administrator’s household.
  2. The administrator may contract with a person to conduct an examination under KRS 393A.550 to 393A.650 .
  3. If the person with whom the administrator contracts under subsection (2) of this section is:
    1. An individual, the individual shall not be related to the administrator; or
    2. A business entity, the entity shall not be owned in whole or in part by the administrator or an individual related to the administrator.
  4. If the administrator contracts with a person under subsection (2) of this section:
    1. The contract may provide for compensation of the person based on a fixed fee, hourly fee, or contingent fee;
    2. A contingent fee arrangement shall not provide for a payment that exceeds ten percent (10%) of the amount or value of property paid or delivered as a result of the examination; and
    3. On request by a person subject to examination by a contractor, the administrator shall deliver to the person a complete and unredacted copy of the contract and any contract between the contractor and a person employed or engaged by the contractor to conduct the examination.
  5. A contract under subsection (2) of this section shall be subject to KRS 61.870 to 61.884 .

HISTORY: 2018 ch. 163, § 63, effective July 14, 2018.

393A.640. Limit of future employment.

The administrator or an individual employed by the administrator who participates in, recommends, or approves the award of a contract under KRS 393A.630 on or after July 14, 2018, shall not be employed by, contract with, or compensated in any capacity by the contractor or an affiliate of the contractor for two (2) years after the latest of participation in, recommendation of, or approval of the award or conclusion of the contract.

HISTORY: 2018 ch. 163, § 64, effective July 14, 2018.

393A.650. Determination of liability for unreported reportable property.

If the administrator determines from an examination conducted under KRS 393A.560 that a putative holder failed or refused to pay or deliver to the administrator property which is reportable under this chapter, the administrator shall issue a determination of the putative holder’s liability to pay or deliver and give notice in a record to the putative holder of the determination.

HISTORY: 2018 ch. 163, § 65, effective July 14, 2018.

Determination of Liability — Putative Holder Remedies

393A.660. Informal conference.

  1. Not later than thirty (30) days after receipt of a notice under KRS 393A.560 , the putative holder may request an informal conference with the administrator to review the determination. Except as otherwise provided in this section, the administrator may designate an employee to act on behalf of the administrator.
  2. If a putative holder makes a timely request under subsection (1) of this section for an informal conference:
    1. Not later than twenty (20) days after the date of the request, the administrator shall set the time and place of the conference;
    2. The administrator shall give the putative holder notice in a record of the time and place of the conference;
    3. The conference may be held in person, by telephone, or by electronic means, as determined by the administrator;
    4. The request tolls the ninety (90) day period under KRS 393A.680 and 393A.690 until notice of a decision under paragraph (g) of this subsection has been given to the putative holder or the putative holder withdraws the request for the conference;
    5. The conference may be postponed, adjourned, and reconvened as the administrator determines appropriate;
    6. The administrator or administrator’s designee with the approval of the administrator may modify a determination made under KRS 393A.650 or withdraw it; and
    7. The administrator shall issue a decision in a record and provide a copy of the record to the putative holder and examiner not later than twenty (20) days after the conference ends.
  3. A conference under subsection (2) of this section shall not be an administrative remedy and shall not be a contested case subject to KRS Chapter 13B. An oath shall not be required and rules of evidence shall not apply in the conference.
  4. At a conference under subsection (2) of this section, the putative holder shall be given an opportunity to confer informally with the administrator and the person that examined the records of the putative holder to:
    1. Discuss the determination made under KRS 393A.650 ; and
    2. Present any issue concerning the validity of the determination.
  5. If the administrator fails to act within the period prescribed in subsection (2)(a) or (g) of this section, the failure shall not affect a right of the administrator, except that interest shall not accrue on the amount for which the putative holder was determined to be liable under KRS 393A.650 during the period in which the administrator failed to act until the earlier of:
    1. The date under KRS 393A.680 the putative holder initiates administrative review or files an action under KRS 393A.690 ; or
    2. Ninety (90) days after the putative holder received notice of the administrator’s determination under KRS 393A.680 if no review was initiated under KRS 393A.680 and no action was filed under KRS 393A.690 .
  6. The administrator may hold an informal conference with a putative holder about a determination under KRS 393A.650 without a request at any time before the putative holder initiates administrative review under KRS 393A.680 or files an action under KRS 393A.690 .
  7. Interest and penalties under KRS 393A.730 continue to accrue on property not reported, paid, or delivered as required by this chapter after the initiation, and during the pendency, of an informal conference under this section.

HISTORY: 2018 ch. 163, § 66, effective July 14, 2018.

393A.670. Review of administrator’s determination.

A putative holder may seek relief from a determination under KRS 393A.650 by:

  1. Administrative review under KRS 393A.680 ; or
  2. Judicial review under KRS 393A.690 .

HISTORY: 2018 ch. 163, § 67, effective July 14, 2018.

393A.680. Administrative review.

  1. Not later than ninety (90) days after receiving notice of the administrator’s determination under KRS 393A.650 , a putative holder may initiate a proceeding under KRS Chapter 13B for review of the administrator’s determination.
  2. A final decision in an administrative proceeding initiated under subsection (1) of this section shall be subject to judicial review under KRS Chapter 13B.

HISTORY: 2018 ch. 163, § 68, effective July 14, 2018.

393A.690. Judicial remedy.

  1. Not later than ninety (90) days after receiving notice of the administrator’s determination under KRS 393A.650 , the putative holder may:
    1. File an action against the administrator in the appropriate court challenging the administrator’s determination of liability and seeking a declaration that the determination is unenforceable, in whole or in part; or
    2. Pay the amount or deliver the property determined by the administrator to be paid or delivered to the administrator and, not later than six (6) months after payment or delivery, file an action against the administrator in the appropriate court for a refund of all or part of the amount paid or return of all or part of the property delivered.
  2. If a putative holder pays or delivers property the administrator determined shall be paid or delivered to the administrator at any time after the putative holder files an action under subsection (1)(a) of this section, the court shall continue the action as if it had been filed originally as an action for a refund or return of property under subsection (1)(b) of this section.

HISTORY: 2018 ch. 163, § 69, effective July 14, 2018.

Enforcement by Administrator

393A.700. Judicial action to enforce liability.

  1. If a determination under KRS 393A.650 becomes final and not subject to administrative or judicial review, the administrator may commence an action in the court or in an appropriate court of another state to enforce the determination and secure payment or delivery of past due, unpaid, or undelivered property. The action shall be brought not later than one (1) year after the determination becomes final.
  2. In an action under subsection (1) of this section, if no court in this state has jurisdiction over the defendant, the administrator may commence an action in any court having jurisdiction over the defendant.

HISTORY: 2018 ch. 163, § 70, effective July 14, 2018.

393A.710. Interstate and international agreement — Cooperation.

  1. Subject to subsection (2) of this section, the administrator may:
    1. Exchange information with another state or foreign country relating to property presumed abandoned or relating to the possible existence of property presumed abandoned; and
    2. Authorize in a record another state or foreign country or a person acting on behalf of the other state or country to examine its records of a putative holder as provided in KRS 393A.550 to 393A.650 .
  2. An exchange or examination under subsection (1) of this section may be done only if the state or foreign country has confidentiality and security requirements substantially equivalent to those in KRS 393A.770 to 393A.830 or agrees in a record to be bound by this state’s confidentiality and security requirements.

HISTORY: 2018 ch. 163, § 71, effective July 14, 2018.

393A.720. Action involving another state or foreign country.

  1. The administrator may join another state or foreign country to examine and seek enforcement of this chapter against a putative holder.
  2. On request of another state or foreign country, the Attorney General may commence an action on behalf of the other state or country to enforce, in this state, the law of the other state or country against a putative holder subject to a claim by the other state or country, if the other state or country agrees to pay costs incurred by the Attorney General in the action.
  3. The administrator may request the official authorized to enforce the unclaimed property law of another state or foreign country to commence an action to recover property in the other state or country on behalf of the administrator. This state shall pay the costs, including reasonable attorney’s fees and expenses, incurred by the other state or foreign country in an action under this subsection.
  4. The administrator may pursue an action on behalf of this state to recover property subject to this chapter but delivered to the custody of another state if the administrator believes the property is subject to the custody of the administrator.
  5. The administrator may retain an attorney in this state, another state, or a foreign country to commence an action to recover property on behalf of the administrator and may agree to pay attorney’s fees based in whole or in part on a fixed fee, hourly fee, or a percentage of the amount or value of property recovered in the action.
  6. Expenses incurred by this state in an action under this section may be paid from property received under this chapter or the net proceeds of the property. Expenses paid to recover property shall not be deducted from the amount that is subject to a claim under this chapter by the owner.

HISTORY: 2018 ch. 163, § 72, effective July 14, 2018.

393A.730. Interest and penalty for failure to act in timely manner.

  1. A holder that fails to report, pay, or deliver property within the time prescribed by this chapter shall pay to the administrator interest at the tax interest rate determined under KRS 131.183 on the property or value of the property from the date the property should have been reported, paid, or delivered to the administrator until the date reported, paid, or delivered.
  2. Except as otherwise provided in KRS 393A.740 or 393A.750 , the administrator may require a holder that fails to report, pay, or deliver property within the time prescribed by this chapter to pay to the administrator, in addition to interest included under subsection (1) of this section, a civil penalty of two hundred dollars ($200) for each day the duty is not performed, up to a cumulative maximum amount of five thousand dollars ($5,000).

HISTORY: 2018 ch. 163, § 73, effective July 14, 2018.

393A.740. Other civil penalties.

  1. If a holder enters into a contract or other arrangement for the purpose of evading an obligation under this chapter or otherwise willfully fails to perform a duty imposed on the holder under this chapter, the administrator may require the holder to pay the administrator, in addition to interest as provided in KRS 393A.730 , a civil penalty of one thousand dollars ($1,000) for each day the obligation is evaded or the duty is not performed, up to a cumulative maximum amount of twenty-five thousand dollars ($25,000), plus twenty-five percent (25%) of the amount or value of property that should have been but was not reported, paid, or delivered as a result of the evasion or failure to perform.
  2. If a holder makes a fraudulent report under this chapter, the administrator may require the holder to pay to the administrator, in addition to interest under KRS 393A.730 , a civil penalty of one thousand dollars ($1,000) for each day from the date the report was made until corrected, up to a cumulative maximum of twenty-five thousand dollars ($25,000), plus twenty-five percent (25%) of the amount or value of any property that should have been reported but was not included in the report or was underreported.

HISTORY: 2018 ch. 163, § 74, effective July 14, 2018.

393A.750. Waiver of interest and penalty.

The administrator:

  1. May waive, in whole or in part, interest under KRS 393A.730(1) and penalties under KRS 393A.730(2) or KRS 393A.740 ; and
  2. Shall waive a penalty under KRS 393A.730(2) if the administrator determines that the holder acted in good faith and without negligence.

HISTORY: 2018 ch. 163, § 75, effective July 14, 2018.

Agreement to Locate Property of Apparent Owner Held by Administrator

393A.760. Right of agent of apparent owner to recover property held by administrator.

  1. An apparent owner that contracts with another person to locate, deliver, recover, or assist in the location, delivery, or recovery of property of the apparent owner which is held by the administrator may designate the person as the agent of the apparent owner. The designation shall be in a record signed by the apparent owner.
  2. The administrator shall give the agent of the apparent owner all information concerning the property which the apparent owner is entitled to receive, including information that otherwise is confidential information under KRS 393A.780 .
  3. If authorized by the apparent owner, the agent of the apparent owner may bring an action against the administrator on behalf of and in the name of the apparent owner.

HISTORY: 2018 ch. 163, § 76, effective July 14, 2018.

Confidentiality and Security of Information

393A.770. Definitions — Applicability.

  1. As used in KRS 393A.770 to 393A.830 , “personal information” means:
    1. Information that identifies or reasonably can be used to identify an individual, such as first and last name in combination with the individual’s:
      1. Social Security number or other government-issued number or identifier;
      2. Date of birth;
      3. Home or physical address;
      4. Electronic-mail address or other online contact information or Internet provider address;
      5. Financial account number or credit or debit card number;
      6. Biometric data, health or medical data, or insurance information; or
      7. Passwords or other credentials that permit access to an online or other account;
    2. Personally identifiable financial or insurance information, including nonpublic personal information defined by applicable federal law; and
    3. Any combination of data that, if accessed, disclosed, modified, or destroyed without authorization of the owner of the data or if lost or misused, would require notice or reporting under KRS 365.720 to 365.730 and federal privacy and data security law, whether or not the administrator or the administrator’s agent is subject to the law.
  2. Any provision of KRS 393A.770 to 393A.830 that applies to the administrator or the administrator’s records applies to an administrator’s agent or the agent’s records.

HISTORY: 2018 ch. 163, § 77, effective July 14, 2018.

393A.780. Confidential information.

  1. Except as otherwise provided in this chapter, the following are confidential and exempt from public inspection or disclosure:
    1. Records of the administrator and the administrator’s agent related to the administration of this chapter;
    2. Reports and records of a holder in the possession of the administrator or the administrator’s agent; and
    3. Personal information and other information derived or otherwise obtained by or communicated to the administrator or the administrator’s agent from an examination under this chapter of the records of a person.
  2. A record or other information that is confidential under law of this state other than this chapter, another state, or the United States continues to be confidential when disclosed or delivered under this chapter to the administrator or administrator’s agent.

HISTORY: 2018 ch. 163, § 78, effective July 14, 2018.

393A.790. When confidential information may be disclosed.

  1. When reasonably necessary to enforce or implement this chapter, the administrator may disclose confidential information concerning property held by the administrator or the administrator’s agent only to:
    1. An apparent owner or the apparent owner’s personal representative, attorney, other legal representative, relative, or agent designated under KRS 393A.760 to have the information;
    2. The personal representative, executor, other legal representative, relative of a deceased apparent owner, agent designated under KRS 393A.760 by the deceased apparent owner, or a person entitled to inherit from the deceased apparent owner;
    3. Another department or agency of this state or the United States;
    4. The person that administers the unclaimed property law of another state, if the other state accords substantially reciprocal privileges to the administrator of this state if the other state is required to maintain the confidentiality and security of information obtained in a manner substantially equivalent to KRS 393A.770 to 393A.830 ; or
    5. A person subject to an examination as required by KRS 393A.580(6).
  2. Except as otherwise provided in KRS 393A.780(1), the administrator shall include on the Web site or in the database required by KRS 393A.290(2)(b) the name of each apparent owner of property held by the administrator. The administrator may include in published notices, printed publications, telecommunications, the Internet, or other media and on the Web site or in the database additional information concerning the apparent owner’s property if the administrator believes the information will assist in identifying and returning property to the owner and does not disclose personal information except the home or physical address of an apparent owner.
  3. The administrator and the administrator’s agent shall not use confidential information provided to them or in their possession, except as expressly authorized by this chapter or required by law other than this chapter.

HISTORY: 2018 ch. 163, § 79, effective July 14, 2018.

Legislative Research Commission Note.

(7/14/2018). Although 2018 Ky. Acts ch. 163, sec. 79, contained a citation to "Section 60 of this Act" (codified as KRS 393A.600 ) in subsection (1)(e) of this statute, it is clear from the context that Section 58 (codified as KRS 393A.580 ) was intended, and this manifest clerical or typographical error was corrected in codification under the authority of KRS 7.136 .

393A.800. Confidentiality agreement.

A person to be examined under KRS 393A.560 may require, as a condition of disclosure of the records of the person to be examined, that each person having access to the records disclosed in the examination execute and deliver to the person to be examined a confidentiality agreement that:

  1. Is in a form that is reasonably satisfactory to the  administrator; and
  2. Requires the person having access to the records to  comply with the provisions of KRS 393A.770 to 393A.830 applicable  to the person.

HISTORY: 2018 ch. 163, § 80, effective July 14, 2018.

393A.810. No confidential information in notice.

Except as otherwise provided in KRS 393A.270 and 393A.280 , a holder shall not be required under this chapter to include confidential information in a notice the holder is required to provide to an apparent owner under this chapter.

HISTORY: 2018 ch. 163, § 81, effective July 14, 2018.

393A.820. Security of information.

  1. If a holder is required to include confidential information  in a report to the administrator, the information shall be provided  by a secure means.
  2. If confidential information in a record  is provided to and maintained by the administrator or administrator’s  agent as required by this chapter, the administrator or agent shall:
    1. Implement administrative, technical,  and physical safeguards to protect the security, confidentiality,  and integrity of the information as required by KRS 365.720 to 365.730 and federal  privacy and data security law, whether or not the administrator or  the administrator’s agent is subject to the law;
    2. Protect against reasonably anticipated  threats or hazards to the security, confidentiality, or integrity  of the information; and
    3. Protect against unauthorized access to  or use of the information which could result in substantial harm or  inconvenience to a holder or the holder’s customers, including  insureds, annuitants, and policy or contract owners and their beneficiaries.
  3. The administrator:
    1. After notice and comment, shall adopt  and implement a security plan that identifies and assesses reasonably  foreseeable internal and external risks to confidential information  in the administrator’s possession and seeks to mitigate the  risks; and
    2. Shall ensure that an administrator’s  agent adopts and implements a similar plan with respect to confidential  information in the agent’s possession.
  4. The administrator and the administrator’s  agent shall educate and train their employees regarding the plan adopted  under subsection (3) of this section.
  5. The administrator and the administrator’s  agent shall in a secure manner return or destroy all confidential  information no longer reasonably needed under this chapter.

HISTORY: 2018 ch. 163, § 82, effective July 14, 2018.

393A.830. Security breach.

  1. Except to the extent prohibited by law other than this  chapter, the administrator or administrator’s agent shall notify  a holder as soon as practicable of:
    1. A suspected loss, misuse or unauthorized access, disclosure,  modification, or destruction of confidential information obtained  from the holder in the possession of the administrator or an administrator’s  agent; and
    2. Any interference with operations in any  system hosting or housing confidential information which:
      1. Compromises the security, confidentiality,  or integrity of the information; or
      2. Creates a substantial risk of identity  fraud or theft.
  2. Except as necessary to inform an insurer,  attorney, investigator, or others as required by law, the administrator  and an administrator’s agent shall not disclose, without the  express consent in a record of the holder, an event described in subsection  (1) of this section to a person whose confidential information was  supplied by the holder.
  3. If an event described in subsection (1)  of this section occurs, the administrator and the administrator’s  agent shall:
    1. Take action necessary for the holder  to understand and minimize the effect of the event and determine its  scope; and
    2. Cooperate with the holder with respect  to:
      1. Any notification required by law concerning  a data or other security breach; and
      2. A regulatory inquiry, litigation, or  similar action.

HISTORY: 2018 ch. 163, § 83, effective July 14, 2018.

Miscellaneous Provisions

393A.840. Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the Revised Uniform Unclaimed Property Act.

HISTORY: 2018 ch. 163, § 84, effective July 14, 2018.

393A.850. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes 15 U.S.C. secs. 7001 et seq., but does not modify, limit, or supersede 15 U.S.C. sec. 7001(c) , or authorize electronic delivery of any of the notices described in 15 U.S.C. sec. 7003(b) .

HISTORY: 2018 ch. 163, § 85, effective July 14, 2018.

393A.860. Transitional provision.

  1. An initial report filed under this chapter for property  that was not required to be reported before July 14, 2018, but that  is required to be reported under this chapter, shall include all items  of property that would have been presumed abandoned during the ten  (10) year period preceding July 14, 2018, as if this chapter had been  in effect during that period.
  2. This chapter shall not relieve a holder of a duty that  arose before July 14, 2018 to report, pay, or deliver property. Subject  to KRS 393A.390(2) and (3), a holder that did not comply with the law governing unclaimed  property before July 14, 2018 shall be subject to applicable provisions  for enforcement and penalties in effect before July 14, 2018.

HISTORY: 2018 ch. 163, § 86, effective July 14, 2018.

CHAPTER 394 Wills

394.010. “Will” defined.

As used in this chapter, unless the context requires otherwise, “will” means a last will or testament, codicil, appointment by will, writing in the nature of a will in exercise of a power, and any other testamentary disposition.

History. 4824: amend. Acts 1964, ch. 128, § 1 (1).

NOTES TO DECISIONS

1.Form.

No particular form is required for a will, if an instrument be in the form of a deed, yet if it appears that the maker did not intend that the instrument be operative until his death, then it is a will. Simon v. Wildt, 84 Ky. 157 , 7 Ky. L. Rptr. 800 , 1886 Ky. LEXIS 49 (Ky. Ct. App. 1886).

Of all instruments a will is least governed by form, the form being unimportant, except as indicating intent. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

The absence of dispositive words such as “give,” “devise,” or “bequeath” does not necessarily stamp an instrument as nontestamentary. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

2.Intent of Testator.

Where the language is plain and free from ambiguity, the will speaks for itself, and technical rules of construction will not be resorted to. Weisser's Trustee v. Mulloy, 276 Ky. 427 , 124 S.W.2d 496, 1939 Ky. LEXIS 535 ( Ky. 1939 ).

In determining intent of testator, the will and its codicils are to be considered as a whole in the light of the circumstances and conditions at the time they were made. McGinnis v. Moore, 278 Ky. 587 , 129 S.W.2d 141, 1939 Ky. LEXIS 473 ( Ky. 1939 ).

In construing wills the intent of the testator is of prime importance, and the intent will if possible be determined from the will as a whole rather than from any isolated part thereof. Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ).

In construing wills, the intention of the testator must be ascertained and given effect. The intention must be gathered from the language used, and technical rules of construction will not be resorted to unless the language is ambiguous or obscure. Testamentary language which by long usage and judicial recognition has come to have a fixed meaning will be treated as having been used with that meaning by the testator. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

The fundamental rule as to the construction of wills is that the intention of the testator, as gathered from his entire will, must prevail unless it be opposed to some positive provision of the will or some general principle of public policy. All technical rules of construction must give way before the intention of the testator, taking into consideration the entire will. Corbin v. Manley, 291 Ky. 289 , 164 S.W.2d 394, 1942 Ky. LEXIS 223 ( Ky. 1942 ).

3.— Will Void for Vagueness.

If provisions of will are so indefinite and ambiguous that court cannot determine testator’s intention, they will be held void and property will pass as intestate. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

If a writing is so uncertain, confused or ambiguous that the testator’s intentions cannot be reasonably ascertained, it is void as a testamentary instrument. Johnson v. Johnson, 312 Ky. 773 , 229 S.W.2d 743, 1950 Ky. LEXIS 753 ( Ky. 1950 ).

4.— Ambiguities.

An ambiguity will be found if the language may apply equally as well to two different things. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

In construing a will every aspect must be dealt with and given effect insofar as possible and an attempt should be made to reconcile any apparent inconsistencies in order to give effect to the testator’s intent. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

Where there is a patent ambiguity in a will, evidence of statements of the testator cannot be considered as an aid to ascertaining an intention not expressed, or one contrary to that which the language reveals, or for the purpose of enlarging or diminishing the estate or interest devised or to vary the legal effect of the language used. Jennings v. Jennings, 299 Ky. 779 , 187 S.W.2d 459, 1945 Ky. LEXIS 774 ( Ky. 1945 ).

5.— Presumption Against Intestacy.

A testator is presumed to have intended to fully dispose of his property and a presumption against partial intestacy will be used to resolve any ambiguities. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

A will must be so construed as to avoid intestacy unless it clearly appears from the language of the will that the testator intended to die intestate as to part of his estate. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

6.“Cash.”

Where testatrix, intending to dispose of all her property, bequeathed “cash” to her brother and sister, and at time of her death had only $25 in currency, but over four thousand dollars in bank deposits, checks, stocks, bonds, and other intangible property, the word “cash” must be construed in its broader sense as including all intangible property which the testator thought of in terms of cash. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

7.“Funds.”

Where will made specific legacies of money to several persons, some of whom were heirs-at-law of the testator, and then recited that any “funds” left after paying the legacies should be divided among the “above heirs,” it was held that the word “funds” was intended to include all of testator’s estate, real and personal. Jennings v. Jennings, 299 Ky. 779 , 187 S.W.2d 459, 1945 Ky. LEXIS 774 ( Ky. 1945 ).

8.Disposition of Property.

Where the mother gave a note to her children providing that it should be paid out of her estate, and that it was “for value received” and no value was in fact received, it was an attempted testamentary disposition of property and must have been executed according to the law of wills in order to be valid. Sullivan v. Sullivan, 122 Ky. 707 , 92 S.W. 966, 29 Ky. L. Rptr. 239 , 1906 Ky. LEXIS 93 ( Ky. 1906 ).

Note written by deceased, addressed to his mother and asking her to pay his funeral expenses and debts, and enclosed in an envelope containing a life insurance policy in which mother was named as beneficiary, could not be probated as a will because it did not purport to dispose of any property. Quinlan v. Quinlan, 293 Ky. 565 , 169 S.W.2d 617, 1943 Ky. LEXIS 666 ( Ky. 1943 ).

An instrument which does not dispose of property is not a will. Brummett v. Brummett, 331 S.W.2d 719, 1960 Ky. LEXIS 127 ( Ky. 1960 ).

9.— Future Estate.

A will must give future estate and where a writing, though it stated in the contents that it was a will, gave a present estate vesting before the death of the testator it cannot be deemed a will. Ward v. Ward, 104 Ky. 857 , 48 S.W. 411, 20 Ky. L. Rptr. 986 , 1898 Ky. LEXIS 235 ( Ky. 1898 ).

Where the testator called the instrument a will and used the words “give, devise and bequeath” and executed the instrument according to the law of wills, but by the terms of the instrument an estate was vested upon valuable consideration during the lifetime of the maker, the instrument was not a will. Ward v. Ward, 104 Ky. 857 , 48 S.W. 411, 20 Ky. L. Rptr. 986 , 1898 Ky. LEXIS 235 ( Ky. 1898 ).

Instrument in deceased’s own handwriting, reciting that testator had “turned over” everything that belonged to him to his sister and nephew, appointing his sister “heir and administrator,” and stating that “it is our will” that nephew purchase outstanding undivided interest in deceased’s farm in order to keep it intact, was testamentary in character, and was not void for vagueness or uncertainty, where deceased had not, in fact, delivered any of his property to his sister and nephew before his death. Moss v. Hodges, 294 Ky. 677 , 172 S.W.2d 584, 1943 Ky. LEXIS 529 ( Ky. 1943 ).

10.Deeds.

Where the instrument contains all of the ordinary elements of a deed but provides that it is to be put to record but not to take effect until the death of the grantor, the instrument is a deed and is not testamentary. Philips v. Thomas Lumber Co., 94 Ky. 445 , 22 S.W. 652 ( Ky. 1893 ). See Rawlings v. McRoberts, 95 Ky. 346 , 25 S.W. 601, 15 Ky. L. Rptr. 771 , 1894 Ky. LEXIS 32 ( Ky. 1894 ).

A writing in the form of a deed by which the party named as “party of the first part” undertook to sell specifically described lands, and provided that the conveyance was to be put to record but to take effect so as to give possession after the death of the grantor and that he desired to make a distribution to take effect upon his death is a deed and not a will as the title was to vest at once and only the distribution and possession were postponed until the grantor’s death. Rawlings v. McRoberts, 95 Ky. 346 , 25 S.W. 601, 15 Ky. L. Rptr. 771 , 1894 Ky. LEXIS 32 ( Ky. 1894 ). See Taylor v. Purdy, 151 Ky. 82 , 151 S.W. 45, 1912 Ky. LEXIS 754 ( Ky. 1912 ).

The mere fact that deeds are executed at the same time as a will does not make the deeds testamentary in character. Where will disposed of entire estate remaining after execution of deeds, and deeds conveyed fee simple title subject to life estate of testatrix, deeds were not testamentary in character. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

11.Partnership Agreement.

Partnership agreement, providing that upon death of either partner the survivor would be entitled to all of the assets of the partnership, and further providing for the carrying of life insurance upon each partner, payable to respective heirs, the premiums being paid out of partnership assets, was not testamentary in character and did not have to be executed in conformity with statutes relating to wills. More v. Carnes, 309 Ky. 41 , 214 S.W.2d 984, 1948 Ky. LEXIS 959 ( Ky. 1948 ).

12.Contract to Make Will.

A contract to make a will, supported by a consideration, may be enforceable. Suter v. Suter, 278 Ky. 403 , 128 S.W.2d 704, 1939 Ky. LEXIS 416 ( Ky. 1939 ).

13.Conditional Wills.

If a will is executed by the testator with the intent that it should be his will only upon the happening of certain events, it is a conditional will and will be considered the will only when the condition has happened; however, there must be a condition, not a mere inducement to the making of the will. Likefield v. Likefield, 82 Ky. 589 , 6 Ky. L. Rptr. 640 , 1885 Ky. LEXIS 23 (Ky. Ct. App. 1885).

14.Codicil.

A codicil is a part of the will, and the will dates as of the date of the last codicil added thereto. Davis' Heirs v. Taul, 36 Ky. 51 , 1837 Ky. LEXIS 138 ( Ky. 1837 ) (decided under prior law). See Armstrong v. Armstrong, 53 Ky. 333 ( Ky. 1853 ) (decided under prior law).

A codicil should be so interpreted if possible to make it harmonize with the provisions of the will. Proctor v. Duncan, 62 Ky. 318 , 1864 Ky. LEXIS 77 ( Ky. 1864 ) (decided under prior law).

15.Attempted Gift.

Where the deceased held a note and executed a writing stating that if she should not collect the amount thereof during her lifetime, her administrator or executor should surrender the note as she intended it as a gift, such an instrument was ineffectual as a gift. It was testamentary, but not having been executed according to the law of wills it must fail. Knott's Adm'r v. Hogan, 61 Ky. 99 , 1862 Ky. LEXIS 30 ( Ky. 1862 ) (decided under prior law).

Cited:

Lyons v. Brown, 352 S.W.2d 549, 1960 Ky. LEXIS 4 ( Ky. 1961 ); Gilbert v. Gilbert, 652 S.W.2d 663, 1983 Ky. App. LEXIS 293 (Ky. Ct. App. 1983).

Research References and Practice Aids

Cross-References.

Administration ceases if will is subsequently produced, KRS 395.040 .

Alien may devise property, KRS 381.290 .

Alien may hold and dispose of real property, acquired by descent or devise, for eight years, KRS 381.330 , 381.340 .

Devisee who kills testator forfeits all interest in testator’s property, KRS 381.280 .

Inheritance and estate taxes, KRS ch. 140.

Inheritance tax to be collected by executor before delivering property to devisee, KRS 140.220 .

Invalid will, legalizing by special legislation prohibited, Const., § 59, Twelfth.

Land adversely held may be devised, KRS 372.070 .

Property unclaimed by devisee for three years vests in state, KRS 393.020 .

Sale or investment of property not to conflict with provisions of will, KRS 386.060 .

Simultaneous death of testator and devisee, distribution in case of, KRS 397.1001 to 397.1009 .

“Will,” “last will,” and “issue” defined, KRS 446.010 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Brown, Estate Planning for the Elder Client: Diminished Capacity, Volume 74, No. 6, November 2010, Ky. Bench & Bar 10.

Kentucky Law Journal.

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

394.020. Persons competent to make — What may be disposed of.

Any person of sound mind and eighteen (18) years of age or over may by will dispose of any estate, right, or interest in real or personal estate that he may be entitled to at his death, which would otherwise descend to his heirs or pass to his personal representatives, even though he becomes so entitled after the execution of his will.

History. 2147, 4825, 4827: amend. Acts 1964, ch. 21, § 4.

NOTES TO DECISIONS

1.Mental Capacity.

The test of mental capacity is a sound mind and not a “perfect sense and memory.” Occasional fits of intemperance is not sufficient evidence to show unsoundness of the mind. Case of Harper's Will, 7 Ky. 244 , 1815 Ky. LEXIS 134 ( Ky. 1815 ) (decided under prior law).

Unwarranted and intense hatred toward nearest relatives shows a lack of testamentary capacity. Johnson v. Moore's Heirs, 11 Ky. 371 , 1822 Ky. LEXIS 134 ( Ky. 1822 ) (decided under prior law).

Testamentary capacity is not that high degree of understanding and ability necessary to render a person capable of making a contract where the parties deal at arm’s length, but exists where the testator has mind and memory enough to understand that he is selecting the persons whom he wishes to have his property, and to know his property, and the natural objects of his bounty, and his duties to them and the persons upon whom his property is bestowed by the testamentary paper which he signs. Wise v. Foote, 81 Ky. 10 , 4 Ky. L. Rptr. 643 , 1883 Ky. LEXIS 20 (Ky. Ct. App. 1883). See Rasdall v. Brush, 104 S.W. 749, 31 Ky. L. Rptr. 1138 (1907); Bailey v. Bailey, 184 Ky. 455 , 212 S.W. 595, 1919 Ky. LEXIS 112 ( Ky. 1919 ).

In determining whether a person was of unsound mind at the time of making the will, each case is determinable upon its own facts. Osborn v. Paul, 272 Ky. 694 , 114 S.W.2d 1134, 1938 Ky. LEXIS 178 ( Ky. 1938 ).

One may have testamentary capacity even though he is mentally unsound. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

The will of a person partially insane is invalid if it is the direct offspring of such partial insanity. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

Mere failure of memory, momentary forgetfulness, or lack of strict coherence in conversation does not render one incapable of executing a will. Tye v. Tye, 312 Ky. 812 , 229 S.W.2d 973, 1950 Ky. LEXIS 779 ( Ky. 1950 ).

2.— Presumption.

Proof of proper execution of a will which appears rational in its provisions is ordinarily sufficient to establish a presumption of the soundness of mind of its maker and to shift the burden of going forward with the evidence to the contestants. Simpson v. Sexton, 311 S.W.2d 803, 1958 Ky. LEXIS 217 ( Ky. 1958 ).

3.— Time of Execution.

Mental capacity is to be determined as of the time at which the will was executed. Overton's Heirs v. Overton's Ex'rs, 57 Ky. 61 , 1857 Ky. LEXIS 12 ( Ky. 1857 ) (decided under prior law). See Cochran's Will, 17 Ky. (1 T.B. Mon.) 263, 17 Ky. 263 , 1824 Ky. LEXIS 211 (1824) (decided under prior law).

In order to set aside a will the evidence of mental incapacity must be reasonably related to the time of the making of the will. Baker v. Murray, 289 Ky. 733 , 160 S.W.2d 27, 1942 Ky. LEXIS 631 ( Ky. 1942 ).

Evidence of a testator’s mental status both before and after the execution of a will are admissible so long as they have a reasonable tendency to indicate his mental condition at the time of the execution of the will. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

4.— Degree of Capacity.

A less degree of mental power may suffice for a simple will than is needed for a complicated will. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

It does not require the same degree or extent of capacity to enable one to make his will as it does to make a contract inter partes. Moore v. Moore, 290 Ky. 715 , 162 S.W.2d 547, 1942 Ky. LEXIS 484 ( Ky. 1942 ).

Persons distinctly subnormal or abnormal mentally may be competent to make wills. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Greater mental capacity is required to make a conveyance than to make a will unless it is a gift or is testamentary in character. Gay v. Gay, 308 Ky. 545 , 215 S.W.2d 96, 1948 Ky. LEXIS 976 ( Ky. 1948 ).

The mental capacity to make a will is not as high as that required to make a deed or contract, because there is no element of competition in a will. Middleton v. Middleton's Ex'r, 302 S.W.2d 588, 1956 Ky. LEXIS 9 ( Ky. 1956 ).

5.— Natural Distribution of Property.

Where the testator died with an estate valued at $60,000, of which he gave one-twelfth to his son, and the remainder to his third wife, whom he had married only a month before the will was executed and only a few months before his death, it is not an unnatural, unreasonable, and unjust disposition of the testator’s estate so as to afford some evidence of testator’s incapacity. Mossbarger v. Mossbarger's Adm'x, 230 Ky. 230 , 18 S.W.2d 997, 1929 Ky. LEXIS 58 ( Ky. 1929 ).

If the will is reasonable, just and natural, it tends to establish capacity in the testator, and that it was voluntarily made. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

An appreciation of the obligation to those whom nature makes the object of one’s bounty is a component of the test for determining not only mental capacity but freedom of will. Gay v. Gay, 308 Ky. 539 , 215 S.W.2d 92, 1948 Ky. LEXIS 975 ( Ky. 1948 ).

A will making just distribution of an estate will be held per se strong evidence of testamentary capacity, while one turning testator’s property into an unnatural channel gives at least some presumption to the contrary. Gay v. Gay, 308 Ky. 539 , 215 S.W.2d 92, 1948 Ky. LEXIS 975 ( Ky. 1948 ).

6.— Unnatural Distribution of Property.

An unequal distribution of property is not, of itself, proof of mental incapacity. Bottom v. Bottom, 106 S.W. 216, 32 Ky. L. Rptr. 494 (1907).

Where the provisions of a will are irrational and unnatural, these provisions may be considered by the jury along with other evidence in the determination of the question of mental incapacity on the part of the testator. Mullins v. Mullins, 229 Ky. 103 , 16 S.W.2d 788, 1929 Ky. LEXIS 704 ( Ky. 1929 ).

Evidence that plans made by testator for disposition of his property were highly impracticable was competent on question of mental capacity. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

The unnatural character of a disposition is admissible as evidence on the question of competency to make a will. Martine v. Roadcap, 281 Ky. 389 , 136 S.W.2d 16, 1940 Ky. LEXIS 35 ( Ky. 1940 ).

Mere fact that testator left nothing to one group of heirs was not sufficient to establish lack of mental capacity. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Where will is unnatural in its provisions and inconsistent with obligations of testator to different members of his family, burden rests upon propounder to give some reasonable explanation of its unnatural character, however, the absence of a reasonable explanation of such unnatural provisions does not entitle contestants to peremptory instruction. Allen v. Henderson, 299 Ky. 92 , 184 S.W.2d 885, 1945 Ky. LEXIS 385 ( Ky. 1945 ).

Inequality in the distribution of an estate by will is not in itself evidence of mental incapacity. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

7.— Medical Testimony.

In an attempt to prove lack of mental capacity, testimony of two doctors that testator did not have sufficient capacity immediately prior to his death more than a week after the will was executed and that from hospital records of the decedent it was doubtful that he had such capacity at the time the will was executed amounted to no more than a scintilla of evidence which was not sufficient to take the question to the jury in the face of testimony by decedent’s attending physician that at the time of execution testator had sufficient capacity. Bennett v. Kissinger, 313 Ky. 417 , 231 S.W.2d 74, 1950 Ky. LEXIS 887 ( Ky. 1950 ).

The opinion of a psychiatrist in response to a hypothetical question which distorted some of the proven facts, omitted others, and contained a conclusion concerning the issue in question had no probative value to establish the testator’s lack of competence. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

8.— Opinion Testimony.

In a will contest on the ground of lack of testamentary capacity, nonexpert opinions not supported by facts or circumstances which themselves tend to establish the testator’s lack of mental capacity to execute his will are insufficient to authorize the submission of the case to the jury or to sustain its verdict against the will. Godman v. Aulick, 261 Ky. 268 , 87 S.W.2d 612, 1935 Ky. LEXIS 641 ( Ky. 1935 ).

Lay testimony that testator was mentally unsound for all purposes is incompetent in will contest case. It should be confined to the issue of testamentary capacity. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

Opinions of contestant’s witnesses that testator lacked testamentary capacity were not sufficient to justify refusing probate of will where opinions were based solely on witnesses’ belief that terms of will were unfair and unjust. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Opinions of nonexpert witnesses that a testator was of unsound mind possess no more probative value than the facts upon which they are founded. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Members of the family and the household neighbors of the testatrix are competent to testify about normal speech, acts, and conduct of the testatrix, and to express their opinion based on this personal knowledge. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Testimony of testator’s wife, children and members of their families as to what they observed concerning testator’s mental and physical condition was not incompetent under KRS 421.210 (repealed) in an action to set aside a will on the grounds of mental incapacity and undue influence. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

Opinions of lay witnesses that the testator lacked mental capacity are competent evidence, but, unless they are based upon facts which tend to establish such lack of capacity, they are not sufficient to take the question to the jury. Tye v. Tye, 312 Ky. 812 , 229 S.W.2d 973, 1950 Ky. LEXIS 779 ( Ky. 1950 ).

In action involving the competency of the testator, direct, positive opinion testimony of witnesses based on knowledge gained from long acquaintance with and observation of the testator was competent although there was no showing of the specific facts upon which these opinions were based. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

9.— Insane Delusions.

Insane delusions based upon spiritualism and religion may be shown to establish a lack of mental capacity. Davis' Ex'r v. Laughlin, 280 Ky. 422 , 133 S.W.2d 544, 1939 Ky. LEXIS 140 ( Ky. 1939 ).

Where there was evidence that testatrix was under a delusion that her husband was associating with other women, it was proper to instruct the jury that if testatrix was insane on this point they should find against her will, which left nothing to the husband. Smith v. Ridner, 293 Ky. 66 , 168 S.W.2d 559, 1943 Ky. LEXIS 571 ( Ky. 1943 ).

The fact that a relative is disinherited because of testator’s prejudice against him does not establish lack of testamentary capacity if the prejudice does not amount to an insane delusion. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Where there was some evidence tending to indicate that the testator was suffering from an insane delusion that his daughter did not exist, the question could not be submitted to the jury in view of the fact that the testator provided for the daughter in his will. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

10.— Sufficient Capacity.

The testatrix was known as “Betty Bailey” and transacted her business under that name. She signed her will “Betty Elizabeth Bailey,” after making inquiry from those present as regards her correct name and how to spell it. This was not to be sufficient evidence to show mental incapacity to make the will. Bailey v. Bailey, 184 Ky. 455 , 212 S.W. 595, 1919 Ky. LEXIS 112 ( Ky. 1919 ).

Eccentricities amounting to no more than slight peculiarities do not establish lack of testamentary capacity. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Mere proof that testator was vain, fractious, short tempered and nervous was not sufficient to establish lack of testamentary capacity. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

The fact that chief beneficiary of will was a college no longer in active operation did not show lack of testamentary capacity, where amount of bequest together with other assets of college might be sufficient to permit college to resume operations. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Where two physicians and several lay witnesses testified that testator did not have mental capacity, and one physician and a number of lay witnesses testified that he did have mental capacity, and the will being attacked was similar to one which testator had drafted many years before his death when his mental capacity was admitted to be good, the evidence was sufficient to sustain a verdict upholding the will, notwithstanding that physician who testified for contestants had visited testator more often and made more thorough examinations than physician who testified for proponents. Allen v. Henderson, 299 Ky. 92 , 184 S.W.2d 885, 1945 Ky. LEXIS 385 ( Ky. 1945 ).

Although the testator was old and sick at the time he executed his will, testimony that he carried on his business capably and had sufficient capacity to know the objects of his bounty by several people, including his banker, his attorney, and his doctor, was sufficient to sustain the jury verdict that he had sufficient capacity to execute the will. Warnick v. Childers, 282 S.W.2d 608, 1955 Ky. LEXIS 250 ( Ky. 1955 ).

Where decedent’s doctor testified that his memory and judgment were poor, his children and other interested witnesses testified that he failed to recognize them on occasions and that he suffered from hallucinations, other disinterested witnesses testified that the decedent had sufficient capacity, and it appeared that the decedent had turned to his former wife for care when he was unable to obtain care from his children, the trial court erred in refusing to probate the will which gave his property to his former wife. Middleton v. Middleton's Ex'r, 302 S.W.2d 588, 1956 Ky. LEXIS 9 ( Ky. 1956 ).

Evidence of a few isolated acts during a period of 50 years indicating peculiarities and eccentricities of testator fell short of establishing the lack of mental capacity to make a will. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

11.— Insufficient Capacity.

Where one was an invalid for many years and could not talk and her intentions and desires were arrived at by asking her questions to which she could only respond “yes” or “no,” it was held that she did have sufficient mental capacity to make a valid will. Mendenhall v. Tungate, 95 Ky. 208 , 24 S.W. 431, 15 Ky. L. Rptr. 639 , 1893 Ky. LEXIS 144 ( Ky. 1893 ).

Evidence of testator’s abnormal acts of cruelty and other unusual conduct held to support verdict finding testator incompetent to make will. Pfuelb v. Pfuelb, 275 Ky. 588 , 122 S.W.2d 128, 1938 Ky. LEXIS 465 ( Ky. 1938 ).

Evidence that testatrix was addicted to use of morphine, that principal devisee was in a position to furnish morphine to her, and that testatrix was of unsound mind was sufficient to support verdict finding undue influence and lack of mental capacity. Franks' Ex'r v. Bates, 278 Ky. 337 , 128 S.W.2d 739, 1939 Ky. LEXIS 428 ( Ky. 1939 ).

12.— Jury Issue.

The issue of testamentary capacity is for the jury. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ). See Moore v. Moore, 290 Ky. 715 , 162 S.W.2d 547, 1942 Ky. LEXIS 484 ( Ky. 1942 ).

Where there is gross inequality in the disposition of an estate among the natural objects of testator’s bounty or the will is unnatural, such facts, when unexplained and corroborated by even slight evidence of want of testamentary capacity or undue influence, are sufficient to take the case to the jury. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

13.— Degree of Proof.

If a will is attacked on ground of lack of mental capacity alone, the evidence must be more convincing than when undue influence is also charged. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

14.Undue Influence.

In determining issue of undue influence, jury may consider mental incapacity, age and physical condition of testator, confidential relations between testator and beneficiary, active participation by beneficiary or agent in preparation of will, and result accomplished. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

In determining the issue of undue influence the jury may take into consideration the testator’s age and evidence of physical weakness and enfeeblement likely to impair his mind and powers of resistance. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Court of Appeals erred in its conclusion that expert offered an opinion on the ultimate fact regarding undue influence in a will contest case so as to invade the province of the jury. Expert/attorney did not provide any improper opinion or invade province of the jury by informing the jury about the duties of an attorney to be careful of the badges of undue influence. Noncontesting party had opened the door to the testimony about the badges of undue influence by seeking such testimony from his own expert. Kesler v. Shehan, 934 S.W.2d 254, 1996 Ky. LEXIS 123 ( Ky. 1996 ).

15.— Nature of Influence.

To set aside a will for undue influence there must be proof of such influence, such as evidence of activity, overt acts, or incriminating statements of the person concerned or of conditions or statements of the testator himself which tend to show that he had been wrongfully influenced or imposed upon to do what he would otherwise not have done in the exercise of his free will. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Where invalidation of a will due to undue influence is asserted it must be found that the influence was of such a nature as to destroy the testator’s free will and induce him to do what he would otherwise not have done and this influence must have directly affected the provisions of the will. Jackson v. Feldhaus, 313 Ky. 552 , 233 S.W.2d 109, 1950 Ky. LEXIS 934 ( Ky. 1950 ).

The power or force imposed must be of such a nature as to destroy the free agency of the maker of the will in order to constitute undue influence. Mayhew v. Mayhew, 329 S.W.2d 72, 1959 Ky. LEXIS 145 ( Ky. 1959 ).

16.— Time of Influence.

Acts constituting undue influence must occur at or prior to the execution of the will and must be operative at the time of its execution. Mayhew v. Mayhew, 329 S.W.2d 72, 1959 Ky. LEXIS 145 ( Ky. 1959 ).

17.— Source of Influence.

Undue influence need not be exercised by beneficiary directly, but may be through agency, by a third person, or by one desiring to keep another from inheriting. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

Effort by an agent of the beneficiary which produces a will may constitute undue influence. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

18.— Confidential Relationship.

The mere existence of confidential relations between the testator and a beneficiary does not raise a presumption that he exercised undue influence over the testator and thereupon place upon him the burden of disproving it. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

19.— Actually Exercised.

Mere opportunity to exercise undue influence, or that there was a possibility that it was exercised, is not sufficient to invalidate a will. There must be some evidence that undue influence was actually exercised in order to invalidate the will. Bailey v. Bailey, 184 Ky. 455 , 212 S.W. 595, 1919 Ky. LEXIS 112 ( Ky. 1919 ).

When testator is shown to be mentally competent to dispose of his property and nothing more is shown than that the beneficiaries had a mere opportunity to exercise influence, such influence will not be presumed because of age or physical infirmity, but it must appear that influence was actually exercised. Smith v. Gilligan's Adm'r, 276 Ky. 533 , 124 S.W.2d 798, 1939 Ky. LEXIS 558 ( Ky. 1939 ).

In order to establish the existence of undue influence evidence must be introduced to show that such influence was actually exercised. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

In order to prove undue influence there must be substantial evidence that such influence was actually exercised. Hurley v. Blankinship, 313 Ky. 49 , 229 S.W.2d 963, 1950 Ky. LEXIS 773 ( Ky. 1950 ).

In order to set aside a will for undue influence, there must be substantial evidence of the exercise of such influence; mere opportunity for the exercise of such influence is insufficient. Bennett v. Kissinger, 313 Ky. 417 , 231 S.W.2d 74, 1950 Ky. LEXIS 887 ( Ky. 1950 ).

20.— Unnatural Disposition of Property.

Apparent unreasonableness and unfairness of a disposition, including the disinheritance of a child, does not per se sufficiently prove that it was made through undue influence. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Only where a will is grossly unfair and inconsistent with a person’s expected dispositions to his immediate family will there be an effect on the question of undue influence. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Where a niece who was the testatrix’s nearest relative, was quite close to the testatrix for many years, had furnished care for the testatrix, had advanced money to the testatrix, and the testatrix had often said would receive all of her property was virtually omitted from the testatrix’s will in favor of a second cousin, who had paid no attention to the testatrix until the last two years of the testatrix’s life, the rule that where there is an unreasonable or unnatural disposition of a testator’s property without explanation, only slight evidence is required to take the question of undue influence to the jury was properly applied, although the rule is usually restricted to cases in which the testator’s children or other immediate natural objects of his bounty are grossly discriminated against. Marcum v. Gallup, 237 S.W.2d 862, 1951 Ky. LEXIS 787 ( Ky. 1951 ).

Where a niece of the decedent cared for him during his last months and his other nieces and nephews had opposed him in a prior lawsuit, leaving most of his property to the one niece was not an unnatural disposition which would be indicative of undue influence. Warnick v. Childers, 282 S.W.2d 608, 1955 Ky. LEXIS 250 ( Ky. 1955 ).

Where testator’s deceased wife made life-long contributions to the accumulation of his estate it was imperceptible that her children would be turned away empty-handed upon testator’s death, and where the jury was presented with a scenario in which the entire relationship between testator and his second wife, to whom he left his entire estate, from courtship to death, was of a scant three months’ duration, there was substantial evidence to support a verdict that testator’s second wife exercised undue influence and that testator lacked the requisite testamentary capacity with regard to the execution of the will in question. Burke v. Burke, 801 S.W.2d 691, 1990 Ky. App. LEXIS 140 (Ky. Ct. App. 1990).

21.— Method of Proof.

Undue influence on testator may be proved by circumstances where there is no direct influence. Allen v. Henderson, 299 Ky. 92 , 184 S.W.2d 885, 1945 Ky. LEXIS 385 ( Ky. 1945 ).

Undue influence in the execution of a will, as other species of fraud, may be proved by a chain of circumstances. Marcum v. Gallup, 237 S.W.2d 862, 1951 Ky. LEXIS 787 ( Ky. 1951 ).

Facts and circumstances leading to the execution of a will may be relied upon to establish the exercise of undue influence. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

22.— Degree of Proof.

Where both undue influence and mental incapacity are relied upon, the contestant’s proof is not required to be as convincing a where mental incapacity alone is charged. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Where both undue influence and lack of capacity are alleged in the execution of a will, less proof is required than where lack of capacity alone is asserted. Waggener v. General Asso. of Baptists, 306 S.W.2d 271, 1957 Ky. LEXIS 31 ( Ky. 1957 ).

23.— Burden of Proof.

An unequal distribution under a will is not sufficient to shift the burden of proof to proponents of the will under a presumption of undue influence as such unequal distribution is only slight evidence of undue influence. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

Contestants of a will have the burden of proving undue influence and the burden of disproving this does not shift to the proponents merely because evidence was produced to show that the testatrix was old and infirm and enjoyed a close relationship with the beneficiaries of the will. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

24.— Jury Issue.

If the will is unnatural in its provisions, propounder has burden of explaining its unnatural character, and slight circumstances are sufficient to take question of undue influence to jury. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

Undue influence can seldom be proved directly; it ordinarily must be proved by circumstances, and most often is a question for the jury, who have an opportunity to observe the witnesses. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

Where there is a charge of undue influence only slight evidence as to such influence will take the question to the jury. Smith v. Ridner, 293 Ky. 66 , 168 S.W.2d 559, 1943 Ky. LEXIS 571 ( Ky. 1943 ).

Evidence that the husband of the principal beneficiary procured the scrivener to write the will in question, that members of the family of testatrix were not allowed alone with her, and that senility had begun to set in on testatrix was sufficient to take the questions of incompetency and undue influence to the jury. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Slight evidence of undue influence is sufficient to take the question to the jury. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Where the provisions of a will are unnatural in nature, there is no explanation for such provisions and there is some slight evidence of influence the jury should be allowed to determine the question of undue influence. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

25.— Insufficient Evidence for Jury.

Where there was no more than opportunity for the exertion of undue influence and the disposition of the testator’s property was not unnatural, the court properly refused to submit the issue of undue influence to the jury. Warnick v. Childers, 282 S.W.2d 608, 1955 Ky. LEXIS 250 ( Ky. 1955 ).

Where there is at most slight evidence of undue influence and no evidence of mental incapacity in the execution of a will and the disposition of the will is not unnatural, the trial court erred in submitting the issue of undue influence to the jury. See v. See, 293 S.W.2d 225, 1956 Ky. LEXIS 58 ( Ky. 1956 ).

Opportunity for the exercise of undue influence is not enough alone to submit the question to the jury. Waggener v. General Asso. of Baptists, 306 S.W.2d 271, 1957 Ky. LEXIS 31 ( Ky. 1957 ).

26.Right to Dispose of Property.

A testator who is of sound mind and not under undue influence may dispose of his property as he wishes. He may disinherit his children if he so desires. Zimlich v. Zimlich, 90 Ky. 657 , 14 S.W. 837, 12 Ky. L. Rptr. 589 , 1890 Ky. LEXIS 141 ( Ky. 1890 ). See Hoerth v. Zable, 92 Ky. 202 , 17 S.W. 360, 13 Ky. L. Rptr. 470 , 1891 Ky. LEXIS 140 ( Ky. 1891 ).

A testator may pauperize even his helpless dependents, if at the time he does it he is mentally sound, knows his estate and its nature and value, and of his own free will makes the disposition. Martine v. Roadcap, 281 Ky. 389 , 136 S.W.2d 16, 1940 Ky. LEXIS 35 ( Ky. 1940 ).

The right to make a will is a statutory right the purpose of which was to allow a competent person to dispose of his property as he wished rather than only in the manner prescribed by the statutes of descent. Howe v. Howe's Ex'x, 287 Ky. 756 , 155 S.W.2d 196, 1941 Ky. LEXIS 633 ( Ky. 1941 ).

The owner of property, if of sound and disposing mind, may transmit his property in such manner as pleases him. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

The law does not avoid a will because it is not in accord with what persons other than the testator deem to be a just disposition of the property. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

One has the right to dispose of his property as he pleases even though the distribution is contrary to the dictates of natural or moral obligations. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Age or senility alone does not deprive a person of the right to devise his property to suit his fancy. Middleton v. Middleton's Ex'r, 302 S.W.2d 588, 1956 Ky. LEXIS 9 ( Ky. 1956 ).

The law extends to each citizen the valuable privilege of disposing of his property at death as he sees fit, and the courts jealously guard his right. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

A mother of a handicapped child had failed to obtain legal authority to fund and manage a trust, which was funded by a settlement received from those allegedly responsible for the child’s condition, as she was not appointed by the District Court, did not obtain approval of the trust, failed to file settlements or accountings, and administered the trust with no court supervision and control; nevertheless, her ex-husband was not entitled to half of the trust funds upon the child’s death under the laws of descent and devise because his parental rights had been previously terminated. Scott v. Montgomery Traders Bank & Trust Co., 956 S.W.2d 902, 1997 Ky. LEXIS 162 ( Ky. 1997 ).

27.Married Women.

Married woman has the same power to make a will as any other person. Bains v. Globe Bank & Trust Co., 136 Ky. 332 , 124 S.W. 343, 1910 Ky. LEXIS 488 ( Ky. 1910 ).

The will of a married woman is governed by the law in force at the time it was executed. Harlan v. Harlan, 144 Ky. 817 , 139 S.W. 1063, 1911 Ky. LEXIS 736 ( Ky. 1911 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Brown, Estate Planning for the Elder Client: Diminished Capacity, Volume 74, No. 6, November 2010, Ky. Bench & Bar 10.

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

Treatises

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

394.030. Minor can make will, when.

No person under eighteen (18) years of age can make any will, except in pursuance of a power specially given to that effect, and except also, that a parent, though under eighteen (18) years of age, may by will appoint a guardian for his child.

History. 4826: amend. Acts 1964, ch. 21, § 5; 1974, ch. 386, § 86.

NOTES TO DECISIONS

1.Construction.
2.— Power Specially Given to That Effect.

The exception in this section, concerning a “power specially given to that effect” has reference to a power of appointment, to direct the disposition of property of another, and it does not embrace the right of a minor to dispose of his own property. Owens v. Owens, 305 Ky. 460 , 204 S.W.2d 580, 1947 Ky. LEXIS 835 ( Ky. 1947 ).

Even if insurance policy specifically gave to insured the right to change beneficiary by will, such right would not constitute a “power specially given to that effect” within the meaning of this section, such as to authorize a minor insured to change beneficiary by will. Owens v. Owens, 305 Ky. 460 , 204 S.W.2d 580, 1947 Ky. LEXIS 835 ( Ky. 1947 ).

3.Federal War Death Benefit.

Minor soldier could not, by will, designate beneficiary of federal war death benefit, in absence of showing that laws as to death benefit were such as to make applicable the exception in this section. Owens v. Owens, 305 Ky. 460 , 204 S.W.2d 580, 1947 Ky. LEXIS 835 ( Ky. 1947 ).

4.Group Life Insurance.

The attempt of a minor to dispose of the proceeds of a group life insurance policy by will is invalid. Metropolitan Life Ins. Co. v. Brown's Adm'r, 222 Ky. 211 , 300 S.W. 599, 1927 Ky. LEXIS 894 ( Ky. 1927 ).

Research References and Practice Aids

Cross-References.

Guardian, appointment by will, KRS 387.040 .

Kentucky Bench & Bar.

Wiederstein, Guardianship for Disabled Persons: A Practical Guide, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 18.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

394.035. Uniform disclaimer of transfers under nontestamentary instruments.

  1. A person, or the representative of an incapacitated person or protected person, who is a grantee, donee, surviving joint tenant, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or contract, or appointee under a power of appointment exercised by a nontestamentary instrument, may disclaim in whole or in part the right of transfer to him of any property, or interest therein by delivering or filing a written disclaimer under this section. A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship. A surviving joint tenant may disclaim the entire interest in any property, or interest therein, that is the subject of a joint tenancy devolving to him, if the joint tenancy was created by act of a deceased joint tenant, if the survivor did not join in creating the joint tenancy and he has not accepted a benefit thereunder. The right to disclaim shall survive the death of the person having it and may be exercised by the personal representative of such person’s estate. The disclaimer shall describe the property or interest therein disclaimed, declare the disclaimer and extent thereof, and be signed by the disclaimant.
    1. An instrument disclaiming a present interest shall be delivered or filed no later than nine (9) months after the effective date of the nontestamentary instrument or contract; and a future interest shall be delivered or filed not later than nine (9) months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. If the person entitled to disclaim does not have actual knowledge of the existence of the interest the instrument shall be delivered or filed not later than nine (9) months after he has actual knowledge of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to himself or another the entire legal and equitable ownership of the interest. (2) (a) An instrument disclaiming a present interest shall be delivered or filed no later than nine (9) months after the effective date of the nontestamentary instrument or contract; and a future interest shall be delivered or filed not later than nine (9) months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. If the person entitled to disclaim does not have actual knowledge of the existence of the interest the instrument shall be delivered or filed not later than nine (9) months after he has actual knowledge of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to himself or another the entire legal and equitable ownership of the interest.
    2. The disclaimer or a copy thereof shall be delivered in person or mailed by registered or certified mail to the transferor or his representative or to the trustee or other person having legal title to, or possession of, the property or interest disclaimed. If real property or an interest therein is disclaimed, a copy of the instrument may be filed for record in the office of the county clerk of the county in which the real estate is situated.
  2. Unless the nontestamentary instrument or contract provides for another disposition, the property or interest therein disclaimed shall devolve as if the disclaimant had died before the effective date of the instrument or contract. A disclaimer relates back for all purposes to that date. A future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the effective date of the instrument or contract that transferred the disclaimed interest.
    1. The right to disclaim property or an interest therein is barred by an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor, a written waiver of the right to disclaim, an acceptance of the property or interest or benefit thereunder, or a sale of the property or interest under judicial sale made before the disclaimer is effected. (4) (a) The right to disclaim property or an interest therein is barred by an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor, a written waiver of the right to disclaim, an acceptance of the property or interest or benefit thereunder, or a sale of the property or interest under judicial sale made before the disclaimer is effected.
    2. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
    3. The instrument of disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him.
  3. This section does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute.
  4. An interest in property existing on July 15, 1980, as to which, if a present interest, the time for filing a disclaimer under this section has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine (9) months after July 15, 1980.
  5. This section shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.
  6. This section may be cited as the uniform disclaimer of transfers under nontestamentary instruments section.

History. Enact. Acts 1980, ch. 259, § 10, effective July 15, 1980.

Research References and Practice Aids

Kentucky Bench & Bar.

Bozell, Disclaimer Trusts: A Flexible Choice for Many Couples in the Face of an Uncertain Future for the Estate Tax, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

394.040. Requisites of a valid will.

No will is valid unless it is in writing with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction. If the will is not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two (2) credible witnesses, who shall subscribe the will with their names in the presence of the testator, and in the presence of each other.

History. 4828: amend. Acts 1978, ch. 85, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1.Power to Dispose of Property.

The legislature has the power to impose technical requirements for the execution of wills, because the power to dispose of one’s property is purely statutory. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

2.Verbal Agreement.

A “verbal agreement” referred to in testatrix’ will could not operate as a will even if it were known, because wills must be in writing, except in instances of nuncupative wills which are effective only as to personal property. Haysley v. Rogers, 255 S.W.2d 649, 1952 Ky. LEXIS 1146 ( Ky. 1952 ).

3.Valid Will.

If the testator cannot read and write, it is not necessary that the will be read to him in order to make a valid will. Shanks v. Christopher, 10 Ky. 144 , 1820 Ky. LEXIS 203 ( Ky. 1820 ) (decided under prior law).

Two sheets of paper, the second of which contained only the attestation clause and signatures of the testator and the witnesses, should be admitted to probate as the will of the testator where proper identification is made by the witnesses. Cole v. Webb, 220 Ky. 817 , 295 S.W. 1035, 1927 Ky. LEXIS 620 ( Ky. 1927 ).

Where testimony showed that testator made his mark in the presence of the witnesses, that the draftsman of the will told witnesses in presence of testator it was his will, and witnesses attested will in presence of testator, the requirements of this section were satisfied. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

Evidence sustained validity of will, where will was holographic, unambiguous, made a natural disposition of testator’s property, and was in proper order, except for a broken sentence, just before pasted slip carrying testator’s signature, which failed to affect material parts of will, and where jury found against contention that broken sentence indicated part of former will had been pasted on propounded will. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Under this section a will to be valid must have the name of the testator subscribed thereto and must be either, (1) acknowledged in the presence of, and subscribed by two credible witnesses, or (2) wholly written by the testator. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

Where neither of two instruments sought to be probated as a will were acknowledged before or signed by subscribing witnesses and the two were not wholly written by deceased, the requirements of this section were not met. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

Where testator did not read a will before signing it, but stated that he knew its contents and his signature was properly witnessed, the will was valid. Taliaferro v. King, 279 S.W.2d 793, 1955 Ky. LEXIS 543 ( Ky. 1955 ).

Where the technical requirements for execution of wills have been substantially complied with, the will should be probated. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

An instrument intended as a will, signed by the testator and two witnesses, and containing the names of persons followed by specifications of property owned by the testator at the time of its execution was sufficient in form and substance as a will. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

4.— Evidence.

Where witnesses to an instrument, in will contest, testified that testator’s signature, which was written on a separate piece of paper pasted at end of the instrument, was genuine and had been executed in their presence, and where there existed no suspicion of fraud, evidence authorized finding that instrument was the last will of the deceased, as against contention that signature had been cut from another will and pasted on instrument after testator’s death. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Where neither of two instruments sought to be probated as a will were acknowledged before or signed by subscribing witnesses and the two were not wholly written by deceased, the requirements of this section were not met. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

A recitation in the attestation clause that the witnesses had initialed earlier pages did not alone raise a fact issue as to authenticity of uninitialed pages. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

Where a will had all appearances of authenticity and there was nothing in the case, other than the attestation clause, to raise any serious doubts about its authenticity, the contestants had the burden of proving that there had been a substitution of pages, rather than the proponents being required to prove their authenticity. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

5.— Multiple Instruments.

Where decedent executed four instruments which were offered for probate, the first properly, the second was dated the same day as the first leaving specific bequests to named individuals but was not signed, the third was subsequent, but the only dispositive provisions appeared under the maker’s signature unsigned, and the fourth was similar to the third, only the first could be probated. Brummett v. Brummett, 331 S.W.2d 719, 1960 Ky. LEXIS 127 ( Ky. 1960 ).

6.— Substantial Compliance.

Where the testator could neither read nor write, and his will was written by another in his absence and the scrivener added the name of the testator thereto, in his absence, but the entire will was read to the testator in the presence of witnesses and he acknowledged same by affixing his mark between the words constituting his name, it was held to be sufficient compliance with this section and a valid will. Garnett v. Foston, 122 Ky. 195 , 91 S.W. 668, 28 Ky. L. Rptr. 1119 , 1906 Ky. LEXIS 37 ( Ky. 1906 ).

A substantial rather than a literal compliance with the statute is required, and, if its object and intent are reached, without violation of its express language, nothing more is required. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

A substantial compliance with this section will suffice, provided there is no violation of the express language. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

7.Invalid Will.

Where a deed to a specific tract of realty contained a clause giving the grantee all of the property the grantor may have on his death and the deed did not meet the requirements of this section, it was without validity as to property other than the specific tract as either a deed or a will. Brennenstuhl v. Scharfenberger, 259 S.W.2d 41, 1953 Ky. LEXIS 917 ( Ky. 1953 ).

8.— Validation by Valid Codicil.

An instrument invalid as a will due to the testator’s failure to sign it may be given life or republished and validated by the execution of a valid codicil. Hurley v. Blankinship, 313 Ky. 49 , 229 S.W.2d 963, 1950 Ky. LEXIS 773 ( Ky. 1950 ).

9.— Testamentary Intent.

Holographic instrument did not contain an expression of testamentary intent sufficient to sustain its probate as decedent’s will where, although the instrument was minimally sufficient to dispose of property, there was no evidence that it was intended to take effect at decedent’s death. Mallory v. Mallory, 862 S.W.2d 879, 1993 Ky. LEXIS 122 ( Ky. 1993 ).

10.Wholly Written by Testator.

Where the testator writes his will in his own handwriting and signs it, it is a valid will, even though he labors under the misapprehension that witnesses to such a document are necessary. Toebbe v. Williams, 80 Ky. 661 , 4 Ky. L. Rptr. 563 , 1883 Ky. LEXIS 14 (Ky. Ct. App. 1883).

The words “wholly written by the testator,” mean wholly in the handwriting of the testator. Hence, a will written on the typewriter by the deceased, does not comply with this provision of the statute. Adams' Ex'x v. Beaumont, 226 Ky. 311 , 10 S.W.2d 1106, 1928 Ky. LEXIS 96 ( Ky. 1928 ).

A will may be in the form of a letter addressed to any party, if wholly written in the handwriting of the writer. McNeill v. McNeill, 261 Ky. 240 , 87 S.W.2d 367, 1935 Ky. LEXIS 620 ( Ky. 1935 ). See Landrum v. McNeill, 269 Ky. 474 , 107 S.W.2d 314, 1937 Ky. LEXIS 623 ( Ky. 1937 ).

11.— Evidence.

A testatrix wrote a letter in her own handwriting to her sister, disposing of her property. Her handwriting was not very legible and she had her attorney copy the document for her. The copied document was offered for probate, and the court held that it should be rejected as a will. McNeill v. McNeill, 261 Ky. 240 , 87 S.W.2d 367, 1935 Ky. LEXIS 620 ( Ky. 1935 ). (The decision of this case is not res judicata if the original letter is later presented for probate.) Landrum v. McNeill, 269 Ky. 474 , 107 S.W.2d 314, 1937 Ky. LEXIS 623 ( Ky. 1937 ).

An unattested will consisting of a typewritten form, which testatrix had changed by filling in blanks and making interlineations in her own handwriting, was not admissible to probate as a will “wholly written” by the testatrix, where the written portion was merely an inseparable part of the typewritten instrument, and was not complete in itself. Blankenship v. Blankenship, 276 Ky. 707 , 124 S.W.2d 1060, 1939 Ky. LEXIS 573 ( Ky. 1939 ).

Similarity between specimens of testator’s handwriting and alleged holographic will, consisting of identical style of certain letters and pen strokes, the uniform angle of the writings, and a natural variance of general characteristics dispelling the idea of forgery, coupled with evidence of instability and irregularity in the writing of the will consistent with testimony as to deceased’s weakened condition at time will was written, established genuineness of will. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Where specimens of testator’s handwriting are offered in evidence for purpose of comparison with writing in alleged holographic will, and no handwriting experts testify, the court may itself compare the writings and determine the genuineness of the disputed will. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Court would be disposed to hold instrument to be a valid holographic will, where testator’s signature appeared at the end, even if proof should show that signature had been cut from a prior will and pasted on the instrument. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Where a testatrix wrote her will on a printed will form and the handwritten portion of the will was complete in itself and was, without reference to the printed words, it was sufficient to pass the testatrix’s estate as the writing constituted a valid holographic will. Fairweather v. Nord, 388 S.W.2d 122, 1965 Ky. LEXIS 413 ( Ky. 1965 ).

12.Signature of Testator.

A testator, whose name was A. J. Whipps, signed his will “A. J. Whpps.” The signature was held to be valid. Word v. Whipps, 28 S.W. 151, 16 Ky. L. Rptr. 403 (1894).

A testator may subscribe his name to a will by making his own inscription, by making a mark to his name which has been inscribed by another, or by directing another to sign his name in his presence. Weiss v. Hanscom, 305 Ky. 687 , 205 S.W.2d 485, 1947 Ky. LEXIS 907 ( Ky. 1947 ).

Where the will is not wholly written by the testator, the subscription of the testator’s name must be made in the presence of at least two credible witnesses, or the will must be acknowledged by the testator in the presence of at least two credible witnesses; and in either event the witnesses shall subscribe the will with their names in the presence of the testator. Weiss v. Hanscom, 305 Ky. 687 , 205 S.W.2d 485, 1947 Ky. LEXIS 907 ( Ky. 1947 ).

Testator may sign in the presence of one witness and acknowledge the will in the presence of the other witness. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

It is not necessary that the testator sign in the presence of the two witnesses. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

Where testator’s name was signed to will with help of another at direction of testator and in presence of two witnesses who in turn signed as witnesses in testator’s presence and at proper place, it complied with provisions of this section. Prichard v. Kitchen, 242 S.W.2d 988, 1951 Ky. LEXIS 1093 ( Ky. 1951 ).

A testator need only either sign the will in the presence of a witness or acknowledge it, not both. Bennett v. Craycraft, 290 S.W.2d 615, 1956 Ky. LEXIS 336 ( Ky. 1956 ).

Where the two attesting witnesses to a will testified that the testatrix acknowledged the writing as her will, stated that she had signed it, and requested that they sign it, which they did, this was sufficient to sustain a jury verdict that the will was signed by the testatrix in spite of the testimony of others, including a handwriting expert, that the signature was not that of the testatrix. Campbell v. Knott, 327 S.W.2d 94, 1959 Ky. LEXIS 70 ( Ky. 1959 ).

13.— By Mark.

Where the testator, through physical weakness, was unable to sign his name, and had another to sign his name for him and then made his mark at the proper place in his name, the signature was valid. Savage v. Butler, 76 S.W. 361, 25 Ky. L. Rptr. 763 .

The use of any name or mark intended by the testator as his signature is sufficient compliance with this section. Reed v. Hendrix's Ex'r, 180 Ky. 57 , 201 S.W. 482, 1918 Ky. LEXIS 18 ( Ky. 1918 ) ( Ky. 1918 ).

14.— By Another at His Direction.

Under this section, the will may be signed either by the testator or by someone else in his presence and at his direction. Harned v. Wise, 185 Ky. 60 , 214 S.W. 813, 1919 Ky. LEXIS 238 ( Ky. 1919 ).

15.— At End.

The witnesses must subscribe their names at the end of the will. If the sheet of paper on which the alleged will is written is so folded so as to leave a large blank space between the writing and their names, the document has not been properly executed as a will. Soward v. Soward, 62 Ky. 126 , 1863 Ky. LEXIS 37 ( Ky. 1863 ) (decided under prior law).

The will was so written as to leave a blank page within it, and the testator and the witnesses signed at the end of the writing; such was sufficient compliance with the statute, the end of the will being interpreted to be the end of the writing. Higgins v. Powell, 8 Ky. Op. 768, 1876 Ky. LEXIS 246 (Ky. Ct. App. Oct. 13, 1876).

The will is signed at the end thereof, even though the signature of the testator and the witnesses is followed by the date of the instrument. The date is immaterial. Flood v. Pragoff, 79 Ky. 607 , 3 Ky. L. Rptr. 372 , 1881 Ky. LEXIS 87 (Ky. Ct. App. 1881).

The signature of the testator must be placed at the end of the will under the provisions of KRS 446.060 . Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Where the entire estate contemplated by the testator is disposed of above the signature, and a paragraph follows the signature appointing an executor, the part of the will above the testator’s signature is valid. Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Where the testator wrote his will in his own handwriting on a sheet of legal cap paper, and there not being room at the bottom of the page for his signature he wrote his name on the ruled line which runs from the top to the bottom, beginning his signature near the bottom of the page, his signature is at the end of the will. Graham v. Edwards, 162 Ky. 771 , 173 S.W. 127, 1915 Ky. LEXIS 152 ( Ky. 1915 ).

The signature of the testator appearing after the testimonium clause is valid and at the end of the will, even though there is left a blank space between the testimonium clause and the concluding clause of the will. Lucas v. Brown, 187 Ky. 502 , 219 S.W. 796, 1920 Ky. LEXIS 154 ( Ky. 1920 ).

Where the testator signs the will beneath the attestation clause, just above the signature of the witnesses, it is sufficient compliance with the statute requiring the signature to be at the end of the will. McCue v. Turner, 252 Ky. 849 , 68 S.W.2d 415, 1934 Ky. LEXIS 863 ( Ky. 1934 ).

The testatrix wrote her will on a sheet of paper and signed it, all of it being in her own handwriting. On the reverse side of the paper, she, in her own handwriting but without signing under it, wrote a clause of a dispositive nature. What appeared on the reverse side of the paper was considered as an improperly executed codicil, and the will was held valid as being signed at the end. Parrott v. Parrott's Adm'x, 270 Ky. 544 , 110 S.W.2d 272, 1937 Ky. LEXIS 115 ( Ky. 1937 ).

Even with liberal interpretation of the requirement that a will be signed by its maker at the end or close, the maker’s signature on a sealed envelope in which an unsigned will is found does not constitute substantial compliance with the requirement. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

Deceased’s signature on a holographic will was sufficiently close to the end of the will to meet the requirements of KRS 446.060 because the only items that followed the signature were the date, directions for appointment of an executrix, and the signatures of the witnesses. The information following the signature did not contain information that was essential to the will’s validity or dispositive of the deceased’s estate. Bennett v. Ditto, 204 S.W.3d 145, 2006 Ky. App. LEXIS 294 (Ky. Ct. App. 2006).

16.— Evidence.

Where the mortgage, alleged to have been signed by testator, was introduced to prove that signature to will was not genuine, but there was no proof that signature on mortgage was genuine, obvious discrepancy between signatures could not furnish grounds for upsetting verdict finding signature to will genuine. Alcorn v. Alcorn, 279 Ky. 1 , 129 S.W.2d 520, 1939 Ky. LEXIS 222 ( Ky. 1 939).

Testimony of persons not qualified as experts, as to genuineness of handwriting in will, was of little probative value, particularly where such witnesses gave no reasons to support their conclusions. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Testimony of handwriting experts that the signature to a will is not genuine may not be sufficient when opposed by the testimony of subscribing witnesses whose testimony is not otherwise contradicted or discredited, to take the issue to the jury. McKinney v. Chastain, 298 Ky. 833 , 184 S.W.2d 240, 1944 Ky. LEXIS 1026 ( Ky. 1944 ).

Where bankers and others acquainted with the decedent testified that the handwriting of a will was the decedent’s and a handwriting expert testified that in his opinion it was not her writing, the evidence was sufficient to support the jury verdict that the will was in the decedent’s writing. Marcum v. Gallup, 237 S.W.2d 862, 1951 Ky. LEXIS 787 ( Ky. 1951 ).

Where two witnesses to a will testified that it was properly executed, but there were minor inconsistencies in their testimony, there was some evidence attacking the credibility of one of them, and they were both friends of the sole beneficiary under the will, various parties testified that the testatrix had indicated an intention to dispose of her property in a manner other than that specified in the will, and two witnesses with expertise as to handwriting testified that the testatrix’s signature was forged, the trial court properly submitted the question of the validity of the signature to the jury. Reffett v. Hughes, 396 S.W.2d 786, 1965 Ky. LEXIS 127 ( Ky. 1965 ).

Evidence was sufficient to find that the deceased had signed a document that was purported to be her holographic will because it was undisputed that the document was written in the deceased’s handwriting, and the document set forth at the bottom, in the same handwriting, that the will was written by the deceased on June 9, 2002. The deceased plainly and unmistakably acknowledged that she wrote the will and consented to its terms. Bennett v. Ditto, 204 S.W.3d 145, 2006 Ky. App. LEXIS 294 (Ky. Ct. App. 2006).

17.Witnesses.

The witness need not attest the will at the same time, nor in the presence of each other, in order to comply with the law. Maupin's Ex'r v. Wools, 62 Ky. 223 , 1864 Ky. LEXIS 36 ( Ky. 1864 ) (decided under prior law).

If an attesting witness, because of failing eyesight, is unable to identify the will, the will may be identified and the attestation of the witness proven by other attesting witnesses who were present at the execution of the will. Reynolds v. Sevier, 165 Ky. 158 , 176 S.W. 961, 1915 Ky. LEXIS 483 ( Ky. 1915 ) ( Ky. 1915 ).

In a probate proceeding, if the witnesses recognize their signatures and testify that they would not have signed the paper except upon the request of the testator, but neither of them is able to remember anything whatsoever about the execution of the will, there has been sufficient compliance with the statute. McCue v. Turner, 252 Ky. 849 , 68 S.W.2d 415, 1934 Ky. LEXIS 863 ( Ky. 1934 ).

Person who signed testator’s name to will in testator’s presence and at his request, and who signed his own name immediately below that of testator, could be counted as a witness to the will, notwithstanding that typewritten attestation clause did not list him as a witness but only as the signer of the testator’s name, where the person so signing testified positively that he signed his own name with the intention of witnessing the will and that the testator had asked him to witness the will. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

Where entire transaction indicated that woman was within the presence of the testator in order to witness the will and to further sign in an official capacity, the fact that she signed as a notary was mere surplusage and did not disqualify her as a witness to the will. Smith v. Neikirk, 548 S.W.2d 156, 1977 Ky. App. LEXIS 645 (Ky. Ct. App. 1977).

18.— Credible.

“Credible” as used in this section, with reference to witnesses, means competent; that is, the witness must not be disqualified to give testimony in a court of justice. Savage v. Bulger, 77 S.W. 717, 25 Ky. L. Rptr. 1269 (1903).

A witness to whom a bequest has been made in the will, is a “credible witness” under this section. Doyle v. Brady, 170 Ky. 316 , 185 S.W. 1133, 1916 Ky. LEXIS 61 ( Ky. 1916 ).

Minor discrepancies in the testimony of the two witnesses to the execution of a will concerning the details of the execution do not prove that either of the witnesses are not credible. Hall v. Childress, 420 S.W.2d 398, 1967 Ky. LEXIS 106 ( Ky. 1967 ).

19.— Signature.

Where only one of the witnesses to the will is within the jurisdiction of the court and he testifies to the acknowledgment of the will and his signature, but cannot say whether or not the other witnesses signed but their handwriting is sufficiently proved, the will has been sufficiently proved for probate. Turner v. Turner, 11 Ky. 101 , 1822 Ky. LEXIS 39 ( Ky. 1822 ) (decided under prior law).

The witnesses may sign, then the testator and if the witnesses thereafter are shown the completed will and recognize their respective signatures, there has been sufficient compliance with the statute. Swift v. Wiley, 40 Ky. 114 , 1840 Ky. LEXIS 97 ( Ky. 1840 ) (decided under prior law).

Where witnesses cannot read and write and another at their direction writes their names for them, and the written names are adopted by the witnesses in the presence of the testator, there has been sufficient compliance with the law. Upchurch v. Upchurch, 55 Ky. 102 , 1855 Ky. LEXIS 26 ( Ky. 1855 ), limited, Soward v. Soward, 62 Ky. 126 , 1863 Ky. LEXIS 37 ( Ky. 1863 ) (decided under prior law).

It is not necessary that the testator orally request the witnesses to witness his will. Farmer's Ex'r v. Farmer's Ex'r, 213 Ky. 147 , 280 S.W. 947, 1926 Ky. LEXIS 469 ( Ky. 1926 ).

One who does not sign a will as a witness, is not a “witness” within the meaning of this section, even though he writes the document for the testator and the testator signs it in his presence. Birch v. Jefferson County Court, 244 Ky. 425 , 51 S.W.2d 258, 1932 Ky. LEXIS 445 ( Ky. 1932 ).

If outward circumstances indicate that the witness intended to sign as a witness, a secret intention not to sign as a witness will not control. Love v. Gibbs, 273 Ky. 775 , 117 S.W.2d 987, 1938 Ky. LEXIS 719 ( Ky. 1938 ).

Scrivener who drafted will and wrote name of testator and one subscribing witness, who were unable to write, and under name of testator wrote “by” his own name, he affixed his signature as an attesting witness, where attestation clause after which signatures were affixed recited “we at his request sign our names here and too in his presence as attesting witnesses.” Love v. Gibbs, 273 Ky. 775 , 117 S.W.2d 987, 1938 Ky. LEXIS 719 ( Ky. 1938 ).

Fact that a subscribing witness signs his name in an official capacity does not invalidate the attestation. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

This section is complied with if testator signs the will in presence of witnesses or acknowledges it within their presence, but in either event the two witnesses must subscribe their names in the presence of the testator. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

20.— — In the Presence of Testator.

The testimony of a person who witnessed the will, and who is interested in destroying it, against the will by stating that he did not sign it in the presence of the testator, will be disregarded where it is shown that he signed it in the presence of the testator. Howard's Will, 21 Ky. 199 , 1827 Ky. LEXIS 133 ( Ky. 1827 ) (decided under prior law).

If the will is signed by the witnesses in the same room with the testator but the testator is asleep, the witnesses have not signed the document in the presence of the testator. Orndorff v. Hummer, 51 Ky. 619 , 1851 Ky. LEXIS 118 ( Ky. 1851 ) (decided under prior law).

The witnesses must attest the will in the presence of the testator. If the witness signs in a different room from that which the testator occupies, it is not in his presence even though he can and does hear the conversations with regard to the matter. McKee v. McKee's Ex'r, 155 Ky. 738 , 160 S.W. 261, 1913 Ky. LEXIS 333 ( Ky. 1913 ).

Each witness must attest the will in the presence of the testator, and this is true even though a witness who signs the will in the absence of the testatrix later on has a conversation with her with reference to the matter in the absence of the will. Catlett v. Satterfield, 199 Ky. 617 , 251 S.W. 659, 1923 Ky. LEXIS 885 ( Ky. 1923 ).

The attestation of a witness to a will may be proved by the other witness, if the former does not remember that he signed the will in the presence of the testator. Rowland v. Holt, 253 Ky. 718 , 70 S.W.2d 5, 1934 Ky. LEXIS 719 ( Ky. 1934 ).

If the will is attested in another room than the one testator is in, it is prima facie not done in his presence; if the will is attested in the same room with the testator it is prima facie done in the presence of the testator. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

The position of the witness in subscribing the will should be such that the testator might see the will and witness by merely looking in that direction. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

Where will was signed by one witness in adjoining room, separated from testator’s bedroom by wall and archway, and testator could not have seen witness sign, will was void. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

This section is complied with if testator signs the will in the presence of witnesses or acknowledges it within their presence, but in either event the two witnesses must subscribe their names in the presence of the testator. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

Where the testator subscribes the will in the presence of the witnesses, there is no requirement relating to the order in which the signatures are affixed, so long as each attesting signature is made in the testator’s presence. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

21.— — By Mark.

If a witness is unable to read and write, he may direct another to sign his name for him and then make his mark when the name is written. Savage v. Butler, 76 S.W. 361, 25 Ky. L. Rptr. 763 .

Witness may subscribe his name by mark as effectually as by writing his signature in full. Love v. Gibbs, 273 Ky. 775 , 117 S.W.2d 987, 1938 Ky. LEXIS 719 ( Ky. 1938 ).

22.— Knowledge of Contents.

The witnesses need not know that it is a will that they are witnessing, nor is it necessary that they see any of the writing if the paper is so folded that they cannot see any writing; it is the signature of the testator that they are witnessing and not the contents of the paper. Flood v. Pragoff, 79 Ky. 607 , 3 Ky. L. Rptr. 372 , 1881 Ky. LEXIS 87 (Ky. Ct. App. 1881).

It is not necessary that either of the witnesses know the contents or that it is a will that they are called upon to witness; if they sign the instrument at the request of the maker, it is sufficient compliance with the statute. P'Pool's Ex'r v. P'Pool's Ex'x, 121 Ky. 588 , 89 S.W. 687, 28 Ky. L. Rptr. 539 , 1905 Ky. LEXIS 246 ( Ky. 1905 ).

It is not necessary that the witnesses to a will know its contents or that it be read to them. Nor is it necessary that they shall understand they are attesting an instrument as a will, but only that there shall be substantial compliance with the statute. Leary v. Leary, 203 Ky. 344 , 262 S.W. 293, 1924 Ky. LEXIS 911 ( Ky. 1924 ).

It is not necessary that witnesses to a will know its contents or even that the instrument is a will. Taliaferro v. King, 279 S.W.2d 793, 1955 Ky. LEXIS 543 ( Ky. 1955 ).

The subscribing witnesses to a will are called upon only to attest the testator’s signature and they are not required to know that the document is a will or what are its contents. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

23.— Number.

The testatrix in January, 1909, wrote a holographic will. In November, 1911, she had prepared another will which she signed before only one witness. Both wills were offered for probate, and it was held that the January will was entitled to be probated and the November will was not entitled to probate, because it was witnessed by only one witness. Rutledge v. Wiggington, 166 Ky. 421 , 179 S.W. 389, 1915 Ky. LEXIS 698 ( Ky. 1915 ).

Trial court erred in admitting a decedent’s non-holographic will to probate as the admission of the will violated the express language of KRS 394.040 and the doctrine of substantial compliance did not apply where two persons actually observed the decedent subscribing the document, but only one subscribed her name to the document as a witness; no Kentucky decision had upheld the validity of a non-holographic will subscribed by only one witness. Smith v. Smith, 348 S.W.3d 63, 2011 Ky. App. LEXIS 267 (Ky. Ct. App. 2011).

Permitting the probate of a non-holographic document to which only one person has subscribed her name as witness is a violation of the express language of KRS 394.040 . Smith v. Smith, 348 S.W.3d 63, 2011 Ky. App. LEXIS 267 (Ky. Ct. App. 2011).

24.Acknowledgment.

The testator need not sign the will in the presence of the witnesses, but may acknowledge his signature to the witnesses. Shanks v. Christopher, 10 Ky. 144 , 1820 Ky. LEXIS 203 ( Ky. 1820 ) (decided under prior law). See Case of Cochran's Will & Testament, 6 Ky. 491 , 1814 Ky. LEXIS 118 ( Ky. 1814 ) (decided under prior law).

Where the testator had his will drawn and his name signed to it and handed it to one of the witnesses and requested that witness to witness it as his will, and that witness and the testator went into the room where the other witness was and the first witness requested the second witness to sign the will as the will of the testator, there was sufficient acknowledgment of his signature by the testator to the second witness. Denton v. Franklin, 48 Ky. 28 , 1848 Ky. LEXIS 9 ( Ky. 1848 ) (decided under prior law). See Griffith's Ex'r v. Griffith, 44 Ky. 511 , 1845 Ky. LEXIS 49 ( Ky. 1845 ) (decided under prior law).

Where all of the witnesses are present and see the testator sign his name to a document, no special acknowledgment is necessary. Savage v. Butler, 76 S.W. 361, 25 Ky. L. Rptr. 763 .

The testator must add his signature to the will before he can acknowledge it before a witness under this section. Limbach v. Bolin, 169 Ky. 204