We tell every married client the same thing, and we say it plainly: if you are married in Kentucky, both of you need a Last Will and Testament. Not one will for the household. Two. And the right time to sign them is not “someday” – it is when you get married, when a child is born, when you buy a home, or when a family changes shape through remarriage. Every one of those events changes who inherits from you under Kentucky law, usually in ways couples do not expect.
The most common assumption we hear is that marriage takes care of it – that a surviving spouse simply gets everything. In Kentucky, that has never been true, and although the General Assembly substantially rewrote the intestacy statutes effective July 15, 2026 (Senate Bill 50, 2026 Ky. Acts ch. 134), it is still not true for a large share of married couples. This article explains what your spouse would actually receive if you died without a will under current Kentucky law, where the statutory default fails married couples, and why the answer to the question in the title is an unqualified yes. If you and your spouse do not have wills, or signed them before your marriage, before your children, or before July 2026, call the estate planning attorneys at Bunch & Brock in Lexington at 859-254-5522 or contact us online.
What Happens If a Married Person Dies Without a Will in Kentucky?
Dying without a will is called dying intestate. When that happens, Kentucky does not ask what you would have wanted. It applies a fixed statutory formula – the intestate succession statutes in KRS Chapter 391 and the surviving spouse’s statutory rights in KRS Chapter 392 – to whatever property passes through your probate estate. A court appoints an administrator (usually the surviving spouse, if he or she applies), the estate is opened in District Court, creditors are paid, and what remains is divided by the formula.
For decades, that formula was built on Kentucky’s old dower and curtesy system, under which a surviving spouse received only a fractional share of a deceased spouse’s separately owned property – one-half of the real estate and one-half of the personal property – with the balance passing to children, parents, or even siblings. Older articles, including the previous version of this one, describe that system. It no longer applies to deaths on or after July 15, 2026.
What Your Spouse Inherits Without a Will Under the 2026 Law
Under KRS 391.010 as amended by Senate Bill 50, the surviving spouse’s intestate share now depends on the shape of the family:
- The entire estate, if the decedent left no surviving descendants (children, grandchildren, and so on);
- The entire estate, if all of the decedent’s descendants are also descendants of the surviving spouse – a first-marriage family with shared children – and the surviving spouse has no descendants from outside the marriage;
- One-half, if the decedent left one or more descendants who are not descendants of the surviving spouse (the decedent’s children from a prior relationship); and
- One-half, if all of the decedent’s descendants are shared, but the surviving spouse has one or more descendants who are not descendants of the decedent (the survivor’s children from a prior relationship).
Whatever does not pass to the spouse goes to the decedent’s descendants, and under KRS 391.030 the same rules govern personal property. In addition, the surviving spouse retains two long-standing protections: the right to have up to $30,000 of personal property or money set apart, free from creditors’ claims and distribution, under KRS 391.030 (the amount was raised from $15,000 in 2020), and the right to a court-authorized withdrawal of up to $2,500 from the decedent’s bank accounts while the estate is pending.
Senate Bill 50 also rewrote KRS 392.020, the statute that defines the surviving spouse’s dower or curtesy interest. The surviving spouse of an intestate decedent now receives, in addition to the KRS 391.010 share, a life estate in one-third of any real estate the decedent owned in fee simple during the marriage but had conveyed away before death, and an absolute one-half of the decedent’s “surplus personalty.” That term matters more than it sounds, and we return to it below.
For a couple in a first marriage whose children are all shared, the new default is spouse-friendly: everything to the survivor. Which invites the obvious question – then why do we need wills? Because the statute handles exactly one family shape well, and it handles even that one incompletely.
Six Ways Intestacy Fails Married Couples
1. Blended families get the one-half rule
If either spouse has a child from a prior relationship, the surviving spouse’s share drops to one-half, and the other half passes immediately to the decedent’s descendants. In practice, that can mean a surviving spouse co-owning the family home with stepchildren, or with a former spouse acting on behalf of a minor child; a surviving spouse forced to sell or buy out the other half of the house he or she lives in; or a minor child’s half tied up in a court-supervised conservatorship until age eighteen. For a blended family, intestacy is close to the worst available plan. A will – usually paired with a trust – is how a couple chooses the balance between spouse and children deliberately, instead of letting a statute choose it. (Our article on estate planning for blended families goes deeper.)
2. The second death is the one intestacy really gets wrong
Joint ownership and the spousal share solve the first death: the survivor ends up with everything. But when the surviving spouse later dies, everything passes under that spouse’s will – or intestacy – to that spouse’s heirs. Nothing routes back to the first spouse’s side of the family automatically. This is how the children of the first spouse to die end up disinherited, legally and by default, and it is why one will is never enough. Only coordinated wills for both spouses, often with a trust for the survivor, can carry a plan across both deaths.
3. Intestacy names no guardian and creates no trust for your children
If any part of an estate passes to minor children, the default is a court-supervised conservatorship and an outright lump-sum distribution at age eighteen. No trustee, no staged distributions, no protection from a young adult’s creditors or an eighteen-year-old’s judgment. And only a will can nominate the guardian who will raise your children if both of you die. A couple with young children who has not signed wills has left the two most important decisions in their lives to a judge who has never met them. We cover both problems in our guides on naming a guardian in your will and what happens when a minor is a beneficiary.
4. Intestacy cannot reflect anything particular to you
No provision for a stepchild you raised (under the 2026 law, stepchildren inherit only when no spouse, descendant, parent, sibling, grandparent, aunt, uncle, or their descendants survive), for a charity or church, for a family member with special needs, for unequal treatment where circumstances warrant it, or for keeping a farm, a business, or a family property intact. It does not choose your executor, either. The court does.
5. A will signed before the marriage does not update itself
Two Kentucky rules surprise newlyweds. First, marriage does not revoke a prior will (KRS 394.090). A will you signed at 25 naming your parents or a former partner stays in force after your wedding – subject to your new spouse’s right to renounce it under KRS 392.080 and take a statutory share instead, which is a litigation event, not a plan. Second, divorce revokes the will provisions in favor of a former spouse (KRS 394.092), but it does not automatically rewrite the beneficiary designations on life insurance and retirement accounts, and federal law generally requires employer plan administrators to pay whoever is named on the form. Newly married, remarried, or divorced, the documents must be deliberately redone.
6. Incapacity can arrive before death does
A will can be signed only by someone with testamentary capacity. If the surviving spouse develops dementia or suffers a stroke after the first death, the plan the couple always intended cannot be written down anymore. Signing wills while both spouses are healthy is the only way to make sure the plan survives the first death. The same event is why every married couple’s plan should include a durable financial power of attorney and advance health care directive for each spouse.
“But We Own Everything Jointly”
Joint ownership with right of survivorship is a legitimate planning tool for married couples, and an incomplete one. Three cautions, learned from decades of settling estates:
Couples own less jointly than they think
An account opened before the marriage, an inheritance from a parent, stock or a brokerage account in one name, a vehicle titled to one spouse, mineral rights, a small parcel of family land – forgotten separate assets surface in probate constantly, and each one requires a court proceeding to transfer, sometimes costing more than the asset is worth.
Kentucky does not presume survivorship – even between spouses
Under KRS 381.050, real estate conveyed to a husband and wife is held as tenants in common, with no right of survivorship, unless the deed expressly provides for it. The same principle applies to other co-owned property under KRS 381.120 and 381.130. A deed that names both spouses but omits survivorship language leaves half the house in the deceased spouse’s probate estate, where it passes by will or by the intestacy rules above. We review clients’ deeds for exactly this problem, and we find it regularly.
Joint ownership only solves the first death
The second-death problem described above applies with full force, and it applies to jointly held accounts and beneficiary designations just as it does to real estate.
The New “Surplus Personalty” Rules and Why They Change Beneficiary Planning
Before 2026, a surviving spouse’s statutory share reached only the probate estate. Assets that passed by beneficiary designation – life insurance, IRAs and 401(k)s, payable-on-death and transfer-on-death accounts – and jointly owned property with survivorship were outside it. A spouse could be left with almost nothing if the other spouse had routed everything to children from a prior marriage by beneficiary form.
Senate Bill 50 changed that. Under amended KRS 392.020, the surviving spouse’s absolute one-half of the decedent’s “surplus personalty” is now measured on an expanded pool that includes personal property payable under a beneficiary, transfer-on-death, or payable-on-death designation (expressly including retirement accounts), property jointly owned with right of survivorship with another person, property held in a trust the decedent could revoke, property subject to a general power of appointment, and property the decedent gave away within two years of death. Life insurance death benefits are excluded from the pool, but proceeds paid to the surviving spouse (or to a trust for the spouse) are credited against the spouse’s share, as is any of the designated property the spouse actually received. And under KRS 392.020(8), the surviving spouse may sue any person who received surplus personalty to satisfy the spousal claim.
The practical consequences for married couples are significant. A spouse who was “cut out” by beneficiary designations now has a statutory claim against the people who received those assets. A surviving spouse who renounces a will under KRS 392.080 – which must be done within six months after the will is admitted to probate – takes a share computed under these expanded rules. And a couple’s beneficiary forms, joint accounts, and trust are no longer independent of the wills; they are part of a single calculation. Plans that were sound in 2025 may now produce results neither spouse intended, especially in blended families, and plans that are improvised from a bank’s beneficiary form rather than drafted as a whole are more likely than ever to end in litigation between a surviving spouse and stepchildren.
If your estate plan relies on beneficiary designations or joint accounts to take care of a spouse or children from a prior marriage, it should be reviewed against the amended KRS 392.020 now. Call Bunch & Brock at 859-254-5522 to schedule that review.
What If We Die Together?
Married couples travel together, and the law has to answer what happens when they die in the same accident or within days of each other. Under KRS 397.1002, a person who is not proven by clear and convincing evidence to have survived the other by 120 hours is treated as having died first. Without wills, that rule combined with the intestacy formula can send each spouse’s separate property to that spouse’s own relatives – parents, siblings – with no provision for the children’s guardianship, no trust, and two separate probate estates. Coordinated wills address the simultaneous-death scenario directly, name the guardian, and route everything into a single trust for the children.
What Passes Outside the Will Regardless
Certain assets bypass both the will and intestacy: property in a living trust, life insurance proceeds, payable-on-death bank accounts, IRAs, 401(k)s and other retirement accounts, transfer-on-death securities, and property expressly held with right of survivorship. These designations are estate planning documents in their own right. They must be coordinated with the wills, because when a will and a beneficiary form conflict, the form controls – and, as explained above, they are now also subject to a surviving spouse’s claim under KRS 392.020. Our article on which assets go through probate in Kentucky covers the categories in detail.
One more correction to a common belief: a will does not avoid probate. It directs it. Couples who want the survivor, and later the children, to skip the court process entirely typically use a revocable living trust to hold the home, accounts, and vehicles, with wills as the backstop. We compare the options in our guide to how to avoid probate in Kentucky.
What a Married Couple’s Estate Plan Should Include
For most married couples in Kentucky, a complete plan is not complicated, but it has several parts that must agree with one another: a will for each spouse, drafted together so that the plan works whichever spouse dies first and at the second death; a guardian nomination for minor children in each will; a trust – either inside the wills or as a separate revocable living trust – to hold any inheritance for children or a surviving spouse who needs protection; a durable financial power of attorney and an advance health care directive for each spouse; beneficiary designations and account titling reviewed and conformed to the plan; and deeds reviewed for survivorship language. Our estate planning checklist walks through each item.
The right time to do this is at the beginning: when you marry, when a child arrives, when you buy a home, when either spouse remarries, and again whenever the law changes – as it did in July 2026.
Frequently Asked Questions
Does my spouse automatically get everything if I die without a will in Kentucky?
Only in some families. Under KRS 391.010 as amended effective July 15, 2026, the surviving spouse takes the entire estate if the decedent left no descendants, or if every descendant is shared and the surviving spouse has no children from outside the marriage. If either spouse has a child from a prior relationship, the surviving spouse’s share is one-half.
Didn’t Kentucky have dower and curtesy laws that limited what a spouse inherits?
Yes. Under the pre-2026 statutes, a surviving spouse of an intestate decedent generally received one-half of the real estate and one-half of the personal property, with the balance passing to the decedent’s relatives. Senate Bill 50 replaced that framework for deaths on or after July 15, 2026. Deaths before that date are governed by the old rules.
We are a first-marriage couple with shared kids. Do we still need wills?
Yes. Intestacy would deliver the assets to the survivor, but it names no guardian for your children, creates no trust to manage a minor’s inheritance if you die together or in close succession, does not choose your executor, and cannot control what happens at the second death.
Does getting married cancel my old will?
No. Under KRS 394.090, a will is not revoked by the marriage of the person who made it. Your pre-marriage will remains in force, subject to your spouse’s right to renounce it under KRS 392.080. Update it.
Does divorce cancel my will?
Divorce or annulment revokes the provisions of a will in favor of the former spouse (KRS 394.092), but it does not rewrite the rest of the will, and it does not change beneficiary designations on life insurance or retirement accounts. After a divorce, sign a new will and redo every beneficiary form.
How much can my spouse access right away if I die?
The surviving spouse may have up to $30,000 of personal property or money set apart under KRS 391.030, and may obtain a court order permitting a withdrawal of up to $2,500 from the decedent’s accounts while the estate is pending. The spouse is also generally entitled to serve as administrator of the estate if there is no will.
What is “surplus personalty,” and why does it matter to married couples?
It is the pool of personal property against which a surviving spouse’s statutory one-half share is measured under KRS 392.020. Since July 15, 2026, that pool includes assets passing by beneficiary designation, payable-on-death and transfer-on-death accounts, retirement accounts, survivorship property, revocable-trust assets, and gifts made within two years of death. It means beneficiary designations no longer sidestep a surviving spouse’s rights.
Can my spouse override my will?
A surviving spouse may renounce the will within six months after it is admitted to probate and take a statutory share instead (KRS 392.080). A will that leaves a spouse less than the statutory share invites that election. Couples who want a different arrangement – common in second marriages – use a written prenuptial or postnuptial agreement together with their wills.
Do we need separate wills, or can we sign one joint will?
Separate wills. Joint wills create serious problems after the first death, including disputes over whether the survivor may change the plan. Coordinated, mutual wills – two documents drafted together – accomplish the same goals without the risk.
How soon after the wedding should we sign wills?
As soon as possible. Marriage changes who inherits from you, but it does not revoke a prior will or update beneficiary forms, so the period between the wedding and the signing is a period in which the law and your intentions are most likely to disagree.
Marriage Is a Plan for Life. A Will Is the Plan for Everything After.
Kentucky’s 2026 law treats surviving spouses far better than the old dower system did – but a statute can only distribute property. It cannot name the person who will raise your children, protect a blended family across two deaths, keep a business or a farm intact, provide for a spouse who becomes incapacitated, or carry out a single wish that is particular to you. And for any couple with children from a prior relationship, the new law’s one-half rule and the expanded spousal claim against beneficiary-designated assets make deliberate, coordinated planning more important than it was before.
The estate planning attorneys at Bunch & Brock have helped Central Kentucky couples put the whole plan in writing for decades: coordinated wills for both spouses, trusts where they earn their place, guardian nominations, powers of attorney, and beneficiary designations and deeds that all say the same thing. If you are married and do not have a will – or you have one that predates your marriage, your children, or July 15, 2026 – call our Lexington office at 859-254-5522 or contact us online to schedule a consultation.
This article is for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship with Bunch & Brock, PSC. Statutory references reflect Kentucky law as of September 2026, including 2026 Ky. Acts ch. 134 (Senate Bill 50), effective July 15, 2026; the intestacy and spousal-share rules described apply to deaths on or after that date. For advice about your specific circumstances, please consult a licensed Kentucky attorney.
