Spousal Elective Share Requirements in Kentucky
At a glance
| Governing law and system | KRS 392.020 and 392.080; will-renunciation dower/curtesy system, substantially broadened effective July 15, 2026 by 2026 Ky. Acts ch. 134 |
|---|---|
| Eligible spouse and who may elect | Surviving spouse may renounce even if under full age; absolute divorce bars claims, and voluntary departure plus adultery forfeits unless reconciled (§§ 392.080(1), 392.090) |
| Share amount and marriage length | On renunciation: 1/3 of fee-simple realty held at death; life estate in 1/3 of fee-simple realty held during marriage but not at death; absolute 1/2 of surplus personalty; no marriage-length scale (§§ 392.020(1), 392.080(1)) |
| Estate base and nonprobate transfers | Surplus personalty includes beneficiary/TOD/POD property, retirement, survivorship property; surplus realty/personalty includes revocable trusts, general appointment powers, transfers under 2 years, and spouse-benefit trusts (§ 392.020(2), (5)–(7)) |
| Deductions, exclusions, and valuation | Life-insurance death benefit excluded from surplus but spouse proceeds credited; spouse-received surplus property credited less paid funeral/burial expense; qualifying spouse trust interests valued under 26 U.S.C. § 7520; qualifying ≥2-year transfers excluded (§ 392.020(3)–(7)) |
| Deadline, extensions, and withdrawal | 6 months after will probate; if timely will contest, 6 months after disposition; district court may add ≤6 months if spouse applies within initial 6 months; no express withdrawal rule (§ 392.080(1)(b)) |
| Filing, service, and court procedure | Use substantially statutory release, acknowledge before oath officer, and file release plus certificate with both probate-court clerk and county clerk in probate county (§ 392.080(1)(a)–(b)) |
| Waiver and agreement requirements | Jointure may bar share; qualifying pre-marriage nonconsensual or infancy jointure may be waived within 12 months after death by acknowledged/proved written relinquishment left with county clerk and copied to probate clerk (§ 392.120) |
| Payment sources and recipient liability | Spouse may sue anyone receiving surplus property to satisfy claim; land recovery from heir/devisee/purchaser uses receipt-time value, excludes recipient improvements, and limits past rent (§§ 392.020(8), 392.070) |
| Effect of election and other spousal rights | Renunciation releases will gifts; spouse may take will gift plus statutory share only when testator plainly states or necessarily implies additive intent (§ 392.080(1)–(2)) |
Requirements one by one
Share amount and the new surplus base
Kentucky calls the statutory interest dower or curtesy. Under §§ 392.020 and 392.080, a spouse who renounces a will receives:
- one-third of fee-simple real estate the decedent held at death;
- a life estate in one-third of fee-simple real estate held during marriage but not at death; and
- an absolute one-half interest in surplus personalty.
The July 15, 2026 amendment makes the base much broader than ordinary probate property. Surplus personalty now includes beneficiary-designated, TOD, POD, retirement, and survivorship property. Surplus realty and personalty also reach revocable trusts, property subject to the decedent's general appointment power, transfers made less than two years before death, and qualifying spouse-benefit trusts.
Credits, exclusions, and collection
Life-insurance death benefits are excluded from surplus personalty, but proceeds payable to the spouse are credited against the spouse's share. Surplus property received by the spouse is also credited, reduced by documented funeral and burial expenses the spouse paid or became obligated to pay.
Property transferred at least two years before death to a person or trust other than the listed spouse-, decedent-, or charity-benefit trusts is excluded. Qualifying trust interests for the spouse are included and credited using the federal § 7520 valuation method.
Section 392.020(8) allows the spouse to sue anyone who received surplus property as needed to satisfy the claim. For land recovered from an heir, devisee, or purchaser, § 392.070 uses the property's value when that person received it, excludes that person's permanent improvements, and limits recoverable past rent.
Form, filing, and deadline
Section 392.080 supplies the substantially required form. The spouse releases what the will gives, signs, and acknowledges the relinquishment before an officer authorized to administer oaths. The relinquishment and officer's certificate must be filed with both the clerk of the court that admitted the will and the county clerk in that county.
The ordinary deadline is six months after probate. A will contest brought within that period moves the deadline to six months after the contest ends. The district court may extend the ordinary period by up to six additional months, but the spouse must apply within the first six months after probate.
Disqualification, jointure, and effect on will gifts
Section 392.090 says absolute divorce bars post-death property claims. A spouse who voluntarily leaves and lives in adultery also forfeits the interest unless the spouses later reconcile and live together.
Jointure—a property provision in place of the statutory share—may bar dower or curtesy under § 392.120. The statute supplies a narrow 12-month waiver route for a pre-marriage jointure made without the survivor's consent or during the survivor's infancy.
Renunciation ordinarily releases the will gift. The spouse may keep a devise or bequest in addition to the statutory share only if the will plainly states, or necessarily implies, that additive intent.
What trips people up
- The base changed on July 15, 2026. Older forms that treat TOD, POD, survivorship, or beneficiary-designated property as outside the claim are stale.
- Two filings are mandatory. Filing only with the probate-court clerk or only with the county clerk does not match § 392.080.
- The extension application has its own deadline. It must be made within six months after probate.
- Life insurance is excluded and credited. It is not surplus personalty, but spouse-received proceeds reduce the spouse's share.
Common questions
Does marriage length change the fractions? No. Chapter 392 states no marriage-duration schedule.
Can a minor surviving spouse renounce? Section 392.080 expressly says the surviving spouse may renounce though under full age.
Does a will contest preserve more time? Yes, if filed within the initial six months. The spouse then has six months after the contest is disposed of.
Can the spouse keep a will gift too? Only when the will plainly expresses or necessarily implies that the gift is additional to the statutory share.
Statutes and sources
- KRS 392.020 — dower/curtesy interests, 2026 expanded surplus property, credits, exclusions, valuation, and recipient action. Official Kentucky statute (accessed 2026-08-02).
- KRS 392.080 — renunciation, statutory form, dual filing, deadlines, extension, and effect on will gifts. Official Kentucky statute (accessed 2026-08-02).
- KRS 392.090 and 392.120 — divorce/adultery disqualification and jointure. Official § 392.090 and § 392.120 (accessed 2026-08-02).
- KRS 392.070 — land valuation and rent recovery against recipients. Official Kentucky statute (accessed 2026-08-02).
- KRS Chapter 392 index — complete current chapter and August 1, 2026 database date. Kentucky Legislative Research Commission (accessed 2026-08-02).
Source links
Every statute quoted above, linked, with the date we checked it.
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