Spouse’s Right to Elect Against a Will in Kentucky
In Kentucky, a surviving spouse has certain rights that can’t be defeated by a will — no matter what the will says. One of the most important of these is the right to “elect against” the will and claim a statutory share of the deceased spouse’s estate. If you’ve been left out of your spouse’s will, or if the bequest you received seems unfairly small, you may have the right to take a larger share under Kentucky law.
What Is the Right of Election?
Under KRS 392.080, a surviving spouse who is dissatisfied with the provision made for them in the deceased spouse’s will may “renounce” the will and instead take a statutory share of the estate. This is sometimes called “electing against the will” or taking an “elective share.” The right exists because Kentucky public policy disfavors completely disinheriting a spouse — the law guarantees a surviving spouse a minimum level of protection regardless of what the will provides.
What Does the Surviving Spouse Receive?
When a surviving spouse elects against the will, they receive their intestate share — the same share they would have received if the deceased spouse had died without a will at all. Under KRS 391.010, that means the surviving spouse receives the first $30,000 of personal property plus one-half of the remaining estate (with the other half going to descendants), or a larger share if there are no surviving descendants.
In addition, the surviving spouse retains their dower or curtesy rights — a life estate in one-third of the deceased spouse’s real property under KRS 392.020. These rights exist independently of the will and independently of the election.
How to Exercise the Right
The surviving spouse must file a written election to renounce the will in the district court handling the probate. This must be done within a specific time period — typically within six months of the appointment of the personal representative, or within six months of the date the surviving spouse learns of the will’s admission to probate. Missing this deadline can waive the right entirely, so timing is critical.
When Does This Come Up?
Election cases most commonly arise in second marriages and blended families, where the deceased spouse left most of the estate to children from a prior relationship. They can also come up when there was marital discord — a will drafted during a period of separation that leaves the spouse little or nothing, but no divorce was ever finalized. Because Kentucky doesn’t recognize legal separation as terminating spousal rights, the surviving spouse retains their elective share rights as long as they were legally married at the time of death.
If you’re a surviving spouse and believe the will doesn’t adequately provide for you, I can help you understand your rights. Call me at (859) 225-9540 or use the contact form.
Joseph D. Buckles is an attorney at Buckles Law Office, PLLC in Lexington, Kentucky.
