Full question:
Can I reject the bequest made in my husband's will? Can claim my elective share separately?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Kentucky
Answer:
Yes, if you want to reject the devise made in your husband will then you can do so. Only when you reject the inheritance under the will, then you can claim your elective share. However, in such case you will get one-third share in any real estate of your husband. This relinquishment of the inheritance should be made and acknowledged by you before an officer who is authorized to administer oaths in Kentucky.Here is the relevant law:
KRS § 392.080:
Surviving spouse may renounce will -- Form to use when renouncing will -- Share of the surviving spouse in such case -- When devise or bequest is in addition to dower or curtesy.
(1) (a) When a husband or wife dies testate, the surviving spouse may, though under full age, release what is given to him or her by will, if any, and receive his or her share under KRS 392.020 as if no will had been made, except that in such case the share in any real estate of which the decedent or anyone for the use of the decedent was seized of an estate in fee simple at the time of death shall be only one-third (1/3) of such real estate. Such relinquishment shall be acknowledged before an officer authorized to administer oaths under the laws of this state and evidenced by the officer's certificate. The relinquishment and certificate shall be in substantially the following form:
I, _____ __________ , am the surviving spouse of _____ __________ . Except as provided in KRS 392.080(2), I hereby release what is given to me by the will of my said deceased spouse. I understand I will now receive the share to which I am entitled pursuant to KRS 392.080.
Surviving Spouse
THE STATE OF _____ __________
COUNTY OF _____ __________
Subscribed to and acknowledged before me by _____ __________ , the surviving spouse of _____ __________ , this __________ day of __________ .
(Officer's signature and capacity)
(b) To be effective, such relinquishment and certificate shall be filed both with the clerk of the court which admitted the will of the deceased spouse to probate and the county clerk of the county where the will of the deceased spouse was admitted to probate, within six (6) months after the admission of the will to probate. If, within those six (6) months, an action contesting the will is brought, the surviving spouse need not make such relinquishment until within six (6) months succeeding the time when the action is disposed of. Provided, however, the period for renunciation may be extended not exceeding six (6) additional months by order entered by the district court upon application of the surviving spouse for such extension within six (6) months after the date of probate.
(2) Subsection (1) does not preclude the surviving spouse from receiving his or her share under KRS 392.020, in addition to any bequest or devise to him or her by will, if such is the intention of the testator, plainly expressed in the will or necessarily inferable from the will.
Ky. Rev. Stat. Ann. § 392.030
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.
Ky. Rev. Stat. Ann. § 392.050
392.050 Rights of surviving spouse pending assignment of dower or curtesy
The surviving spouse shall be entitled, from the time of the deceased spouse's death until dower or curtesy is assigned, to such share of the rents and profits of the deceased spouse's real estate as is equal to the surviving spouse's share in the real estate itself, under KRS 392.020, and the surviving spouse shall hold the dwelling house, yard, garden, the stable and lot on which it stands, and an orchard, if there is one, adjoining any of the premises aforesaid, until dower or curtesy is assigned, or, in case of renunciation, under KRS 392.080.
Ky. Rev. Stat. Ann. § 392.040
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.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
