By Susan Buckner, J.D. | Legally reviewed by Susan Buckner, J.D. | Last reviewed June 18, 2024
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Kentucky, like most other states, is an equitable division state. In equitable division states, property acquired during a marriage becomes marital property. During a divorce or legal separation, courts divide marital property fairly between the spouses, but not always equally.
Nine states, including California and Texas, are community property states. Family courts divide marital property 50/50 in these states, regardless of which spouse acquired it. Each state has slightly different rules for the division of marital property during divorce.
In Kentucky, marital property becomes important if a spouse dies intestate (without a will). Kentucky is one of three states still recognizing dower and curtesy (KSR § 392). These laws allow a spouse to inherit one-half of the real property and one-half of the decedent’s personal property. The surviving spouse is also entitled to a homestead exemption (Kentucky Statute 427.070), which gives them a life estate in the family home.
Kentucky dower and curtesy laws apply only to real estate and personal property.
Note: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information available. You should consult an attorney or conduct your own legal research to verify the state law(s) before making any legal decision.
In every state, all property acquired during a marriage becomes marital property. Kentucky divorce courts presume that everything bought, earned, or used during the marriage is a marital asset used for the benefit of the marriage. Therefore, courts attempt to divide it equitably between divorcing spouses.
Marital property can include:
Separate property, or non-marital property, is all property acquired before the marriage or after the date of the divorce filing. It may also be property that falls into one of five exceptions:
In an equitable distribution state, judges can consider many factors when dividing property between the couple. Courts prefer close to equal property division. Judges will review the circumstances of each spouse during the division of assets.
Some things judges may consider include the following:
Kentucky isn’t a community property state, but in 2020, Kentucky’s legislature passed the Kentucky Community Property Trust Act (KRS § 386.622). This law allows couples to place some of their marital assets in a trust so executors can distribute them as community property in the event of one spouse’s death.
The Community Property Trust Act protects community assets from step-up taxes for estate planning purposes. It wasn’t meant to create liabilities in a divorce case. Couples wanting to use this law to protect real estate or other property should get legal advice from a tax expert before making any property transfers.
Marital property rights are a cause of dispute during a divorce. If you’re involved in a divorce and need advice about your marital property, contact a Kentucky family law attorney for help with your case.
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