KY Underwriting References

Spousal Interests

Dower

In Kentucky, the out of title spouse has a claim to 1/3 of the interests owned by the other spouse during the term of the marriage unless relinquished. ½ of the interest owned at death. Dower rights take effect only at death of the in title spouse. Pertinent statutes and cases below.

Spousal Joinder required in any deed or mortgage -- except Purchase Money Mortgage

392.010 Husband's interest in wife's realty same as wife's interest in his. All the sections of this chapter, except KRS 392.100, that relate to the wife's dower or interest in the deceased husband's estate, shall apply in all cases, so far as may be, to the husband's interest in the wife's estate. Effective: July 1, 1956 History: Amended 1956 Ky. Acts ch. 117, sec. 1, effective July 1, 1956. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2148.

392.020 Surviving spouse's interest in property of deceased spouse -- "Dower" and "curtesy" defined. After the death of the husband or wife intestate, the survivor shall have an estate in fee of one-half (1/2) of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death, and shall have an estate for his or her life in one-third (1/3) of any real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple during the coverture but not at the time of death, unless the survivor's right to such interest has been barred, forfeited or relinquished. The survivor shall also have an absolute estate in onehalf (1/2) of the surplus personalty left by the decedent. Unless the context otherwise requires, any reference in the statutes of this state to "dower" or "curtesy" shall be deemed to refer to the surviving spouse's interest created by this section. Effective: July 1, 1956 History: Amended 1956 Ky. Acts ch. 117, sec. 2, effective July 1, 1956. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2132.

When life tenant died during pendency of equitable action between remaindermen for partition of land subject to life estate, husband of owner of undivided interest in remainder became entitled under statute to inchoate right of curtesy concurrently with seisin in fee simple of wife, and husband then became a necessary and proper party to partition action, since under statute his right of curtesy could not be barred by conveyance or encumbrances by wife, unless he joined therein or released his right by a separate instrument.  Faulkner v. Terrell (Ky. 1956) 287 S.W.2d 409.  Descent And Distribution 162;  Descent And Distribution 172;  Parties 29

392.030 Actual possession by deceased spouse not necessary for dower or curtesy If the deceased spouse, during the coverture, was seized in law of the fee simple of any real estate, then the surviving spouse may have dower or curtesy in that real estate, although the deceased spouse never had actual possession.

HISTORY: 1974 c 386, § 77, eff. 6-21-74; 1942 c 208, § 1; KS 2134

392.040 Lands in which surviving spouse to have no dower or curtesy. (1) The surviving spouse shall not have dower or curtesy in land sold but not conveyed by the deceased spouse before marriage, nor in land sold in good faith after marriage to satisfy an encumbrance created before marriage or created by deed in which the surviving spouse joined, or to satisfy a lien for the purchase money. If, however, there is a surplus of the land or proceeds of sale after satisfying the lien, surviving spouse may have dower or curtesy out of that surplus of the land or compensation out of the surplus of the proceeds, unless they were received or disposed of by the decedent in his lifetime. (2) If the decedent held land by executory contract only, the surviving spouse shall not have dower or curtesy in the land, unless decedent owned such an equitable right at the time of his death. History: Amended 1974 Ky. Acts ch. 386, sec. 78. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2135, 2142

Statutory exception to dower and curtesy interests for property sold to satisfy purchase money mortgage would prevail over statute providing that married woman's encumbrance of property did not bar husband's right to curtesy unless he likewise signed instrument creating lien, and thus holder of purchase money mortgage on property deeded to wife alone had mortgage on full interest in property, even though husband did not sign mortgage.  First Union Home Equity Bank, N.A. v. Bedford Loan and Deposit Bank (Ky.App. 2003) 111 S.W.3d 892.  Marriage And Cohabitation 626(4)

In a suit to foreclose the lien of a mortgage in which the wife joined, the wife is not a necessary party.  The word “deed” in this section includes mortgage.  Nelson v. Dunn (Ky. 1926) 215 Ky. 292, 284 S.W. 1084.  Marriage And Cohabitation 725

392.070 Recovery of dower or curtesy from heir, devisee or purchaser -- Value of -- Rents. When a surviving spouse recovers dower or curtesy against the heir or devisee or purchaser from the decedent, the dower or curtesy shall be according to the value of the estate when received by the heir, devisee or purchaser, and shall not include, in the estimated value, any permanent improvements which the heir, devisee or purchaser has made on the land. Against the heir or devisee or his alienee the surviving spouse's claim for rent shall not exceed rent for five (5) years before the action, and against a purchaser from the decedent the surviving spouse's claim shall be only from the commencement of the action. In either case it shall continue up to final recovery. If, after action has been brought, the surviving spouse or tenant dies before recovery, the rent may be recovered by the surviving spouse's representative or against the tenant's heirs, devisees and representatives.

History: Amended 1974 Ky. Acts ch. 386, sec. 80. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2139.