96 Ky. L.J. 99 (2007-2008)
Married in Kentucky: A Surviving Spouse's Dower Right in Personalty

handle is hein.journals/kentlj96 and id is 107 raw text is: NOTES

Married in Kentucky:
A Surviving Spouse's Dower Right in Personalty
Elizabeth S. Muyskensl
K ENTUCKY is not only unusual for retaining some form of the common
law rule of dower through statute,' but also for including personal
property in its dower statute. Common law limited dower to real estate3
and, in most states, the right to dower has been replaced with elective
share statutes.4 In Kentucky, if an individual dies intestate, their surviving
spouse is entitled to an estate in fee of one-half of the real estate the other
spouse owned in fee simple at death, a life estate in one-third of the real
estate the other spouse owned in fee simple during his or her marriage but
not at the time of death, as well as an absolute estate in one-half (1/2) of
the surplus personalty left by the decedent.5 The Kentucky courts have
recognized the right of dower, even as an expectancy, as so sacred to the
surviving spouse that a spouse, or prospective spouse, cannot convey his
[or her] real estate or even his [or her] personal property or give it to others
for the purpose of taking from [his or her own] dower rights.6 The only
way that the husband or wife can lose their dower is to either sell it, forfeit
it, or die and leave it.'
I J.D. expected, May zoo8, University of Kentucky College of Law; B.S. in Accounting,
summa cum laude, May 2005, University of Kentucky. The author wrote this Note in memory
of her father, James Kenneth Smith. He encouraged and supported all of her legal aspira-
tions.
2 Theresa M. Mohan and J. Aaron Byrd, You Cannot Change soo Years of Property Law at
5:00 PM. on a Friday-Dower as Applied in Kentucky, 33 N. Ky. L. REV. 335, 335 (2oo6). See also
Angela M. Vallario, Spousal Election: Suggested Equitable Reform for the Division of Property at
Death, 52 CAT. U. L. REV. 519,527-28 n.45 (2003).
3 i Ky. PRAc. PROB. PRAC. & PROC. 158 (2d ed.).
4 WAYNE M. GAZUR & ROBERT M. PHILLIPS, CASE STUDIES IN ESTATE PLANNING 105
(2004).
5 Ky. REV. STAT. ANN.  392.020 (2007) (Statute only awards a dower right in the real estate
that the decedent owned in fee simple).
6 Rowe v. Ratliff, 104 S.W.2d 437, 439 (Ky. 1937).
7 Id. Husband and wife can be used interchangeably as both have equal statutory in-
terests in the other's property. In this Note, dower will be used to represent both dower and
curtesy. See Ky. REV. STAT. ANN.  392.090 (2007) (spouse forfeits dower right in the case of
divorce or if he or she leaves and lives in adultery).

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