Updated September 5, 2026. Quick answer: Kentucky does not have a modern “elective share”; it has dower and curtesy, and KRS 392.020 was substantially rewritten effective July 15, 2026. The current default under Sec. 392.020: a life estate in 1/3 of any real estate the decedent owned in fee simple at some point during the marriage but no longer owned at death, plus an absolute 1/2 of the decedent’s “surplus personalty”; a category the 2026 rewrite expanded to reach payable-on-death, transfer-on-death, joint-survivorship and certain revocable-trust property. Separately, KRS 392.080 lets a surviving spouse renounce the will and take a share as if no will had been made, except real estate the decedent still owned in fee simple at death is capped at only 1/3 in that scenario.
What Kentucky actually sets out
| What the statute sets out | What it says |
|---|---|
| KRS 392.020(1) (dower/curtesy share, amended eff. 7/15/2026) | “an estate for his or her life in one-third (1/3) of any real estate of which the other spouse… was seized of an estate in fee simple during the coverture but not at the time of death… The survivor shall also have an absolute estate in one-half (1/2) of the surplus personalty left by the decedent.” |
| KRS 392.080 (will renunciation) | “the surviving spouse may… 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… was seized of an estate in fee simple at the time of death shall be only one-third (1/3) of such real estate.” |
| The share and what it is measured against | life estate in 1/3 of real estate owned during the marriage but not at death, plus an absolute 1/2 of surplus personalty (a category expanded in 2026 to include most non-probate transfers); on renouncing a will, real estate still owned in fee simple at death is separately capped at 1/3; measured against a mix of formerly-owned real property, a modern non-probate-inclusive personalty category, and, on renunciation, at-death real estate. |
| Regime type | traditional dower/curtesy, substantially rewritten in 2026; not a single unified elective-share percentage |
| Can it be waived | dower/curtesy rights can be barred or relinquished by antenuptial or postnuptial contract |
| Time limit to file | a will renunciation under KRS 392.080 must be filed with the probate clerk and county clerk within 6 months after the will is admitted to probate, extendable up to 6 additional months |
How it works in practice
- The 1/3 real-property life estate is measured against real estate owned in fee simple at any time during the marriage but not at death; the 1/2 surplus-personalty share reaches beneficiary-designated, POD/TOD, joint-survivorship and certain revocable-trust personal property.
- Partially. Real property the decedent still owned in fee simple at death is not covered by the 1/3 life-estate rule (that only reaches property no longer owned at death) and is governed instead by the will or by intestacy/renunciation under KRS 392.080; the surplus-personalty rule does reach a revocable trust’s personal property.
- Waiver: Dower/curtesy rights can be barred or relinquished by antenuptial or postnuptial contract.
- The election has to be affirmatively filed on a deadline: a will renunciation under KRS 392.080 must be filed with the probate clerk and county clerk within 6 months after the will is admitted to probate, extendable up to 6 additional months.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Kentucky specifically, and its own numbers above should be used instead of the calculator’s national default for a Kentucky estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- KRS 392.020 was substantially amended effective July 15, 2026 (2026 Ky. Acts ch. 134, sec. 2); this session re-fetched and re-read the current statute text directly rather than relying on the prior research pass, which described pre-amendment language. KRS 392.080 (the will-renunciation mechanism) was last amended in 2010 and is unchanged; its cross-reference to “share under KRS 392.020” now resolves to the rewritten 2026 default. This page does not attempt to synthesize a single bottom-line percentage across both statutes; each is quoted and described on its own terms.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Kentucky is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.