As Lawyers Mutual discussed in June’s LMICK Minute, Issue #69, Kentucky’s enactment of Senate Bill 50 is a significant revision to Kentucky probate and estate-administration law. While the legislation modernizes numerous probate administration procedures, several of its most consequential substantive changes involve the rights of surviving spouses. Attorneys who prepare estate plans, administer estates, or advise clients during divorce, remarriage, or blended-family situations should become familiar with these revisions because they substantially alter the default rules of intestate succession and expand the surviving spouse’s statutory claim against certain non-probate assets and transfers.
For many years, Kentucky’s statutory framework reflected traditional concepts of dower and curtesy. Senate Bill 50 modernizes that framework and expands the statutory treatment of blended families, jointly owned assets, payable-on-death accounts, transfer-on-death designations, revocable trusts, and other common estate-planning devices.
Senate Bill 50 first makes important changes to Kentucky’s default rules for the descent of intestate real estate, which apply to persons who die intestate after July 15, 2026. Under amended KRS 391.010, the surviving spouse’s share depends principally on the descendants of the decedent and surviving spouse:
- If the decedent leaves no descendants, the surviving spouse takes the entire intestate real estate. This is true even if the surviving spouse has descendants from another relationship.
- If the decedent leaves descendants who are all also descendants of the surviving spouse, the surviving spouse takes the entire intestate real estate, provided the surviving spouse has no descendants who are not descendants of the decedent.
- If the family is blended, the surviving spouse generally takes one-half of the intestate real estate. The one-half rule applies if the decedent has descendants who are not descendants of the surviving spouse, or if the decedent’s descendants are also descendants of the surviving spouse but the surviving spouse has other descendants who are not descendants of the decedent. The remaining one-half passes under the statutory order of descent, beginning with the decedent’s children and their descendants.
Perhaps even more significant are the revisions to KRS 392.020. Senate Bill 50 expands the property considered in determining surplus personalty, surplus real estate, and the amount needed to satisfy the surviving spouse’s dower/curtesy claim. Beneficiary-designated assets, transfer-on-death designations, payable-on-death designations, including retirement accounts, jointly owned personal property with rights of survivorship, revocable trusts, property subject to a general power of appointment, and certain transfers made less than two years before death may be included, subject to the statute’s stated exceptions, in determining the spouse’s dower or curtesy claim. As a result, estate planners must evaluate a broader universe of assets than under prior law.
The legislation also creates an important statutory enforcement mechanism by expressly authorizing a surviving spouse to bring an action against recipients of property that is part of the surplus real estate or surplus personalty when necessary to satisfy the spouse’s statutory share. This new cause of action recognizes that the statute reaches several common non-probate transfer methods and gives surviving spouses a means to pursue qualifying non-probate assets that affect their statutory entitlement. Estate litigation involving trusts, joint accounts, beneficiary designations, and recent lifetime transfers may become an area of increased dispute.
These changes are particularly important in second marriages, blended families, and situations involving family farms, closely held businesses, or other assets clients intend to preserve for children from prior marriages. Existing estate plans should be reviewed to determine whether they continue to accomplish client objectives under the revised statutory framework.
Practice Pointers for Kentucky Attorneys
- Review existing estate plans for clients in second marriages or blended families.
- Analyze probate and non-probate assets when evaluating surviving spouse rights.
- Review beneficiary designations, retirement accounts, POD/TOD designations, and joint ownership arrangements.
- Advise fiduciaries to investigate non-probate transfers early during estate administration.
- Expect possible increased litigation involving revocable trusts, beneficiary designations, and survivorship property.
- Document estate-planning discussions carefully where children from prior relationships are involved.
- Consider updating trust and will forms to account for Senate Bill 50’s expanded surviving-spouse protections.
Key Consideration
Because Senate Bill 50 broadens the assets considered in calculating a surviving spouse’s statutory share, practitioners should not evaluate only the probate estate. A comprehensive review of probate and non-probate assets is now essential when advising clients, administering estates, or litigating surviving-spouse claims.
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