A Primer on Kentucky Intestacy Laws

Some form of inheritance has existed since ancient times. The biblical story of Esau, who sold his birthright to his younger brother Jacob for a mess of potage, demonstrates the long-standing recognition of inheritance rights. Although the United States Constitution does not explicitly guarantee to the owner of property a right to transmit that property upon death to another person, the United States Supreme Court has held that a total abrogation of the right of inheritance without the payment of just compensation is unconstitutional. Every state has a system of inheritance created by statute and by case law. State inheritance laws contemplate that the owner of property has died in one of two ways—”testate” (with a will) or “intestate” (without a will). A majority of all Americans die intestate without any directions as to the disposition of their property. Consequently, the legislature of every jurisdiction has adopted statutes governing intestate succession. Kentucky\u27s laws on intestate inheritance are found in Kentucky Revised Statutes (“KRS”) chapter 391 entitled “Descent and Distribution.” Today, there are few significant distinctions between intestate succession to real and personal property. At the common law, however, different laws determined the identity of the intestate takers of real property and the intestate takers of personalty. Thus, distinct, but parallel, technical vocabularies developed to describe succession based on the characterization of the decedents property as real or personal. For example, “descent” refers to the devolution of intestate real property, while “distribution” denominates the intestate succession to personalty. Those to whom the decedent\u27s real property descends are “heirs,” and those who take the decedent\u27s personal property are “next of kin” or “distributes.” The intestacy scheme in Kentucky only applies to property remaining in the decedent\u27s estate after application of the dower chapters. The statutory provisions on dower contained in KRS chapter 392 usually determine the rights of a surviving spouse in Kentucky. The surviving spouse is an intestate taker only if the deceased spouse was not survived by a child, a descendant of a child, a parent a sibling, or a descendant of a sibling. Therefore, when there is a surviving spouse, before determining the proper intestate distribution of the decedent\u27s property, reference must be made to the dower chapter

Cooperative Apartments: A Survey of Legal Treatment and an Argument for Homestead Protection

“The homestead may be a splendid mansion, a cabin or a tent,” but can it be a cooperative apartment? The supreme courts of both Florida and Georgia recently have answered this question in the negative. The Florida Supreme Court denied to a widow a homestead exemption in her deceased husband\u27s cooperative apartment, ruling that a cooperator has no proprietary interest in the apartment, the building, or the land on which the building is situated. The Georgia Supreme Court denied a homestead tax exemption to cooperators because they lacked the characteristics of ownership needed to bring them within the constitutional exemption from taxation for owners of a homestead. Both decisions ignore the claimants\u27 use of their apartments as their primary residences. The refusal to bring stock-owned cooperative apartments within the purview of homestead statutes deprives cooperators of valuable protections granted to owners of other dwelling units. Such refusals result from the use of technical and mechanical distinctions, rather than a broader, more purpose-oriented approach in definition, thereby ignoring the policy consideration at the very heart of homestead exemption statutes-protection of a debtor\u27s home. Such refusals also reflect the law\u27s continued inability to deal with the hybrid nature of the cooperator\u27s interest in a stock-owned cooperative apartment. This treatment has resulted in an unnecessary gap in homestead coverage that can disappoint the expectations of a layperson who thinks he or she owns a cooperative apartment. This article explores the nature and history of homestead exemption statutes and the interests that have been recognized as sufficient to support a homestead exemption. The article next surveys the legal treatment of cooperative apartment interests. Methods that those states with the highest number of cooperatives have chosen or might choose to resolve the issue of the permissibility of a cooperative homestead are also examined. Finally, the article discusses several problems attending the extension of homestead coverage to cooperatives

Joint Custody

Shared custody has traditionally been looked upon with disfavor by the courts. Similarly, some professionals in the field of child development oppose the concept of shared custody. There are, however, several advantages to shared custody. The legal system benefits, as judges escape the unenviable task of playing Solomon. The child benefits because both parents continue to have a voice in the child’s upbringing, and the child continues to enjoy the love, advice, and companionship of both parents. In addition, because both parents share the responsibility of child raising, neither is faced with the loss of self-esteem which results from being designated a “visitor” to his or her child. Finally, all parties involved benefit significantly by avoiding a bruising custody battle with its attendant bitterness and emotional damage

Surface Mining in Kentucky

In 1977, Congress enacted the Surface Mining Control and Reclamation Act. The Act, designed to protect the environment and society from the adverse effects of surface coal mining and to insure uniform minimum nationwide regulatory standards, established a comprehensive regulatory scheme for surface mining and reclamation operations of both federal and non-federal lands within the United States. The Secretary of the Interior, acting through the Office of Surface Mining and Reclamation within the Department of the Interior, is charged with administering and implementing the Act. Implementation is divided into two stages. During the initial, or interim phase, all surface mining operations within a state are subject to federal enforcement of certain federally-promulgated environmental protection standards, complemented by continued state regulation. Under the second, or permanent phase, all surface mining operations within a state are subject to either federal or state enforcement of a regulatory program complying with all of the Act\u27s environmental and performance standards. If a state desires to assume permanent and exclusive regulatory authority (primacy) over surface mining under the permanent phase, it must submit a proposed permanent program to the Secretary of the Interior for approval. To receive approval, the state proposal must show that the state has enacted laws and regulations embodying the environmental protection and performance standards of the Act. The state proposal also must demonstrate the state\u27s technical and administrative ability to enforce the required standards. Because coal is an integral part of Kentucky\u27s economy, it is not surprising that Kentucky sought primacy. Kentucky\u27s revised proposed permanent program was approved by the Secretary of the Interior on May 18, 1982

Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry?

The U.S. Supreme Court has found that the right to marry is a constitutionally protected right. That right is restricted, however, by state incest statutes which impede marriage between adults by making some choices of a marriage partner illegal. The constitutional validity of modern state incest statutes is difficult to analyze because of shifting definitions, reflexive fears, ambivalent attitudes, and underlying facile generalizations. The mere word incest triggers strong feelings of revulsion in most people. Therefore, any a priori labeling of a marriage as incestuous tends to preclude objective thought about the permissibility of the particular form of the marriage prohibition at issue. Such revulsion stems largely from the confusion of incest with sexual abuse of children. This confusion is not limited to the general public, but extends to the courts as well. The incest motif itself persists as a tradition. Alleged public horror combined with obvious fascination for the theme extends in an unbroken line from the myths of preliterate peoples to contemporary literature. Any examination of contemporary incest statutes as a limitation on the right to marry must be sensitive to the historically ambivalent reactions to acts in contravention of the prohibition. Finally, myths and half-truths about the genetic effects of incestuous matings on the offspring represent another impediment to an analysis of the constitutional validity of contemporary incest statutes as marriage prohibitions. Although directly contradicted by current scientific knowledge of genetic inheritance, common knowledge continues to teach that incestuous unions cause mentally and/or physically defective offspring. Once one recognizes these analytical difficulties—reflexive fears, shifting definitions of incest itself, ambivalent attitudes, and facile underlying generalizations—one can begin to rationally evaluate the validity of state incest statutes in the light of the constitutional right to marry. After making such an analysis, this author has concluded that neither the civil marriage bar nor the criminal bar against incestuous acts serves any valid purpose which cannot be better served by statutes which do not impinge on the constitutional right to marry