A Primer on Kentucky Intestacy Laws

Some form of inheritance has existed since ancient times. The biblical story of Esau, who sold his birthright to his younger brother Jacob for a mess of potage, demonstrates the long-standing recognition of inheritance rights. Although the United States Constitution does not explicitly guarantee to the owner of property a right to transmit that property upon death to another person, the United States Supreme Court has held that a total abrogation of the right of inheritance without the payment of just compensation is unconstitutional. Every state has a system of inheritance created by statute and by case law. State inheritance laws contemplate that the owner of property has died in one of two ways—”testate” (with a will) or “intestate” (without a will). A majority of all Americans die intestate without any directions as to the disposition of their property. Consequently, the legislature of every jurisdiction has adopted statutes governing intestate succession. Kentucky\u27s laws on intestate inheritance are found in Kentucky Revised Statutes (“KRS”) chapter 391 entitled “Descent and Distribution.” Today, there are few significant distinctions between intestate succession to real and personal property. At the common law, however, different laws determined the identity of the intestate takers of real property and the intestate takers of personalty. Thus, distinct, but parallel, technical vocabularies developed to describe succession based on the characterization of the decedents property as real or personal. For example, “descent” refers to the devolution of intestate real property, while “distribution” denominates the intestate succession to personalty. Those to whom the decedent\u27s real property descends are “heirs,” and those who take the decedent\u27s personal property are “next of kin” or “distributes.” The intestacy scheme in Kentucky only applies to property remaining in the decedent\u27s estate after application of the dower chapters. The statutory provisions on dower contained in KRS chapter 392 usually determine the rights of a surviving spouse in Kentucky. The surviving spouse is an intestate taker only if the deceased spouse was not survived by a child, a descendant of a child, a parent a sibling, or a descendant of a sibling. Therefore, when there is a surviving spouse, before determining the proper intestate distribution of the decedent\u27s property, reference must be made to the dower chapter