Do I Need a Will If I Am Married in Kentucky?

November 29th, 2022 by Bunch & Brock

If you die without a will in the state of Kentucky, your assets transfer to your relatives under state intestate succession laws. Being married in Kentucky doesn’t necessarily mean the surviving spouse receives your assets upon death. Unlike most other states, Kentucky utilizes the “dower and curtesy” inheritance structure. If a spouse dies without a will, the spouse receives the dower share, but not the entire estate. Because of these laws, you’ll want to consider a will to designate how you want your assets distributed, despite being married. A will is an essential part of estate planning that everyone should create and update regularly.

What If We Have Joint Assets?

If you and your spouse own all assets jointly, all assets will pass to the survivor upon death. However, most couples may assume they own assets jointly but they actually do not. Some assets are forgotten, such as an old bank account opened before the marriage or some stock shares. Forgetting to add a name to a bank account, car title, or other assets can result in probate fees to transfer the asset. In some cases, the probate fees are more than the asset is worth.

Even if you and your spouse own everything together, joint ownership only transfers ownership when the first spouse dies. When the second spouse dies, ownership doesn’t automatically pass to other relatives. This is something important to consider if you have children from a prior marriage or a blended family. If the surviving spouse creates a will after the death of the first spouse, assets will pass to the family of the surviving spouse upon death. Nothing will automatically pass to the family of the first spouse to die.

You may also want to consider any potential mental and physical conditions that could arise and the circumstances of the surviving spouse. If the surviving spouse may be mentally or physically incapable of drafting a will, you may want a will regardless of marriage. If the surviving spouse is receiving government benefits, an inheritance could be enough to terminate benefits based on asset laws.

What Happens If We Have Some Separate Assets?

If a spouse dies without a will, some separate assets must be transferred in a probate court proceeding. Regardless of marital status, this is considered ‘dying intestate,’ a term that means, “without a will.” Without a will, Kentucky state law dictates how your separately owned assets are distributed.

Under Kentucky law, when a person dies without a will, his separately owned assets will pass to his spouse if there are no children or descendants, parents, siblings, and/or descendants of siblings. If there are any of those surviving relatives or family members, then the surviving spouse receives a dower share. Since it can get a little complicated, we’re going to break down different assets and how it works.

Surviving Spouse’s Share of Separately Owned Real Estate

If a spouse dies intestate, dower laws allow for the spouse to receive 50% of the real property.  The other half goes to the deceased spouse’s children. If there are no children, the next in line would be their grandchildren, followed by parents, then siblings, and then nieces and nephews. If there are multiple children, they divide the share evenly. If the deceased spouse does not have any of the additionally listed relatives, then the surviving spouse would be entitled to all of the real property.

Surviving Spouse’s Share of Separately Owned Personal Property

Everything that is not real estate falls under the category of “personal property.” If a spouse dies without a will, the spouse’s personal property is distributed the same way as separately owned real estate.  The surviving spouse is entitled to the 50% dower share.  The other remaining 50 percent goes to the deceased spouse’s relatives based on succession laws – children, followed by grandchildren, then parents, siblings, or nieces and nephews. If all the listed relatives have predeceased the decedent, the surviving spouse is entitled to the entire amount.

Homestead Exemption

A surviving spouse in Kentucky is entitled to a homestead exemption, which is an alternative to dower laws. The surviving spouse is entitled to use a homestead property as long as they occupy it. This means they can live in the home their entire life if it is their primary residence under Kentucky Statute 427.070.

$15,000 Personal Property Exemption

A surviving spouse is entitled to a personal property exemption of $15,000 but must file a petition to receive it.

$2,500 Bank Withdrawal

In addition to the $15,000 exemption, a surviving spouse is legally entitled to some cash. A spouse can legally make a withdrawal of $2,500 from the deceased spouse’s bank account before the court steps in to distribute and retitle the account to the appropriate heirs under Kentucky Statute 391.030.

Assets That Automatically Bypass Probate With or Without a Will

There are certain assets that don’t go through a will and can bypass probate. These aren’t affected by intestate succession laws. Examples include:

  • Property transferred to a living trust
  • Life insurance proceeds
  • Payable-on-Death bank accounts
  • Funds in an IRA, 401(k), or another retirement account
  • Securities held in a transfer-on-death account
  • Property owned in joint tenancy or tenancy by the entirety
  • Property that passes to a surviving spouse.

These assets will pass to the spouse or named beneficiary, despite there not being a will.

Avoiding Probate with a Living Trust

Contrary to popular belief, a will doesn’t avoid probate. Even with a will, the assets have to go through the legal process of being retitled. Probate is often a costly and lengthy process most people want to avoid having their loved ones face. Kentuckians can avoid probate by placing assets, including real estate, bank accounts, vehicles, etc. in a living trust.

A will is just one document in the process of planning for the future. It gives you the ability to express how you want your assets divided, rather than letting the law decide. To discuss the benefits of creating a will even if you’re married or have other estate planning needs, reach out to us today at 859-254-5522.

Attorney Matthew Bunch

Matt handles complicated bankruptcies and debt restructuring in Chapters 11 and 13 for both individuals and companies. He has also negotiated with multiple creditors on behalf of his clients to avoid bankruptcy. Matt is the firm’s lead litigator and handles contract disputes, certain personal injury claims and general litigation. [ Attorney Bio ]