Those who die without a valid will (this is known as intestate) in Kentucky do not automatically have all assets transferred to the surviving spouse. Unlike most other states, Kentucky has a “dower and curtesy” (DAC) approach to inheritance. Under the DAC inheritance structure, the surviving spouse gets the dower share of the estate but not the whole estate. The dower share amount is based on the estate’s size and if there are children or grandchildren from the marriage. If there are no descendants, the order for beneficiaries is the decedent’s parents, then siblings, and then nieces and nephews.
Different assets handled differently
The intestate decedent’s assets are categorized as personal and real property during probate. The difference between these categories is important:
- Personal property: This includes cars, furniture, artwork, livestock and other belongings. The dower share is 50%, with the other half divided among children or the rest of the family. The surviving spouse can get a $15,000 personal property exemption if they file a petition. They can also withdraw $2,500 from the deceased’s bank account before distributing cash or retitling an account.
- Real property: This involves land and real estate. The surviving spouse gets 50%, with the rest divided equally among the rest of the family. However, the spouse is entitled to use or occupy the real property if it is their primary residence.
Exceptions that do not go through probate are life insurance, IRAs and other retirement accounts, payable upon death accounts, jointly owned property (with business partners), and property that goes directly to the spouse.
Joint assets handled differently
While most spouses share assets and treat their property as co-owners, both names must be on the property title, stock shares or bank account. Failure to attach both names to the asset can lead to probate fees, which may be higher than the asset’s value. If there are actual joint assets, they pass to the survivor upon death.
Remarriage and children
Removing an ex from the will, life insurance policies and other assets is standard. The spouse can then add a new spouse or children from this marriage to assets. However, unless plans are made, the children of the first marriage are not automatically included.
It is better to put it in writing
Probate and intestate success laws are helpful, but not drafting a will and estate plan can be a significant headache for the executor and the beneficiaries. It also may prompt family members to fight over assets in court.