The dower statutes in Kentucky present challenges when deciding what parties to name in a foreclosure complaint. When dower issues arise, title claims might be necessary, which means foreclosures can be delayed and court costs can increase.
Dower is a somewhat complex right given to protect spouses who are not listed as titleholders on the deed for their homestead. Dower rights in English law date back to the Magna Carta, when widows were granted some protection from the economic hardships that occurred when their title-holding husbands died.
Protections for Widows and Widowers
Today, KRS 392.020 protects widows and widowers as follows: “an estate in fee of one-half (½) of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death, and shall have an estate for his or her life in one-third (1/3) of any real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple during the coverture but not at the time of death.”
This is a long way of saying that unless a surviving spouse signed the mortgage, a foreclosure won’t remove their right to demand half of the equity (ahead of the mortgage) and live in at least a portion of their house for the rest of their lives.
Exceptions to the Statute
However, Kentucky also has a statute that revokes dower rights in many situations. KRS 392.040(1) says that a surviving spouse “shall not have dower or curtesy” in the following cases:
- In land sold but not conveyed by the deceased spouse before marriage,
- In land sold in good faith after marriage to satisfy an encumbrance created before marriage,
- In land sold in good faith after marriage to satisfy an encumbrance in which the surviving spouse joined, or
- To satisfy a purchase-money mortgage.
These exceptions cover many loans, including “purchase-money mortgage closings” and closings where the mortgage properly states the marital status of each person signing as “unmarried” or “husband and wife.”
Local Custom and Practice
But despite the clear exceptions listed above, master commissioners and judges in a number of Kentucky counties cite to local custom and practice when requiring that known surviving spouses or even “the unknown spouse of” a deceased titleholder be named as a party-defendant. This requirement can delay the foreclosure for months and increase court costs when constructive service is required by the warning order attorney.
Our firm has been communicating with many of those master commissioners and judges, pointing to the exceptions statute (KRS 392.040) and to commonly accepted title standards that eliminate the requirement to add unnecessary “dower spouses” or “unknown spouses” as defendants. We have succeeded in changing local requirements in some counties, helping to speed up the foreclosure process and reduce court costs in those foreclosures.