Case Study 4 - The surviving spouse’s share

Answers for Kentucky Residents

The following answers are based upon Kentucky law as of April, 2006. Laws are subject to change, so please ask an attorney for answers to specific questions.

1. Assume that Joe and Sarah own their home as community property. If Joe’s will leaves the home to their three children, and he dies before Sarah, the children will inherit the home.

Kentucky Answer: False.

Joe cannot distribute more than he owns. Sarah already owns an interest in the house, depending on how the property is titled.

2. If Joe and Sarah own everything with a right of survivorship, Joe is wasting his time writing a will.

Kentucky Answer: False.

It is true that, if Joe dies first, all property held jointly with right of survivorship will be held exclusively by Sarah, unless there is clear and convincing evidence of a contrary intent. Should Sarah die first, Joe’s will will govern the distribution of his estate.

3. If Joe dies before he can write his will, Sarah will inherit:

Kentucky Answer: B.

One half of Joe’s separate property, and all of Joe’s joint property.

Sarah is entitled to $7,500 and half of the remainder of Joe’s individually owned property under the intestacy statute and the whole of any joint property with right of survivorship.

4. Joe can disinherit Sarah by leaving her $1 under his will.

Kentucky Answer: False.

Kentucky law provides that Sarah, the surviving spouse, may elect to renounce the will and receive what she would have inherited under the Commonwealth’s intestacy statute. She has six months after probate to make this election.

5. The following options can be successful in disinheriting a spouse:

Kentucky Answer: F (B, C, and D).

B. Prenuptial agreement.

C. Post-nuptial agreement.

D. Failure of surviving spouse to claim elective share within time allowed (6 months).

6. Assume that Sarah convinces Joe of her undying love and devotion. Under his will, Joe can leave Sarah at most:

Kentucky Answer: A.

Joe can leave Sarah at most, all of his property.

7. If Sarah inherits the maximum amount of property allowed by law under Joe’s will, how much will be exempted from federal estate tax at Joe’s death, if he dies in the year 2003? (Joe’s gross estate is valued at $5 million.)

Kentucky Answer: C.

$5 million.

The entire amount received by a surviving spouse is exempt from federal estate tax.

8. If Sarah inherits the maximum amount of property allowed by law under Joe’s will, she can skip most of the probate process in Kentucky.

Kentucky Answer: False.

While the court may “dispense with administration” and authorize probate of the will in a simplified proceeding, this has less to do with whether or not Sarah inherits the maximum allowed by law than with the value of the estate, whether Sarah is the sole beneficiary, and whether the estate includes probatable assets. The estate may be sufficiently small—that is, valued at no more than $15,000--that it can be transferred to the beneficiary by summary proceeding. Or—for example, if all the assets are joint assets with right of survivorship—there may be no assets needing to pass through the hands of the executor.

9. Assume that Sarah inherits the maximum amount of property allowed by law under Joe’s will, and by the year 2008, the value of her estate is $10 million. Also assume that Sarah is seriously injured in a car accident in January 2008. She is diagnosed as being in a persistent vegetative state and could be kept alive by feeding tubes for years. Her living will states that she does not want to be kept alive by extraordinary means or by feeding tubes if she is diagnosed in this condition. In spite of the huge medical costs, her children will have financial motivation to keep her alive for several years.

Kentucky Answer: True.

Under current law, for a person dying in 2008, the amount of the estate passing to the children which is exempt from federal estate tax is $2 million; in 2010 the transfer tax is destined to be repealed.

Return to Advance Directives Case Study 4.

View the Communicate Your Advance Directives for Health Care learning lesson.

Credits

Adapted for use in the Legally Secure Your Financial Future: Organize, Communicate, Prepare program.

Content Development
Reviewed for use in Kentucky by:
Matthew Holland, law student,
Louis D. Brandeis School of Law, Samuel L. Greenbaum Public Service Program
University of Louisville, Kentucky.

Supervised by:
Ron Marstin, Urban Managing Attorney,
Legal Aid Society, Louisville, Kentucky.

This information is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not intended to be a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in these materials are based solely on the laws in force on the date of release noted on this page.

This document is for non-profit educational purposes only. This document may not be used by a profit-making company or organization. When used by a non-profit organization, appropriate credit must be given to the Cooperative Extension Legally Secure Your Financial Future: Organize, Communicate, Prepare education program. Materials for this program were developed by a team from six land-grant universities. The program is included in the program toolkit of the Cooperative Extension Financial Security in Later Life national initiative. For more information go to: http://www.csrees.usda.gov/fsll.