When a Spouse leaves the other and commits an Act of Adultery, does he or she forfeit their right to and interest in the other’s property and estate?

By Nicholas M Nighswander

KRS 392.090(2) states that “[i]f either spouse voluntarily leaves the other and ‘lives in adultery’, the offending party forfeits all right in and to property of the estate of the other, unless they afterward become reconciled and live together as husband and wife (emphasis added)”.
In the case of Griffin vs. Rice, ___ S.W.3rd ____, rendered September 20, 2012 to be published, the Kentucky Supreme Court affirmed a Kentucky Court of Appeals decision reversing a trial court decision interpreting KRS 392.090(2) and opined that “one act of adultery” does not mean “lives in adultery” according to the statute.

At a trial over who should inherit from Curtis estate, the following facts of the case were developed. Curtis and Kathy Rice were married in February of 2004 and in July of 2004 separated when Kathy voluntarily left Curtis, filed for divorce and for a domestic violence order against Curtis. Curtis entered an appearance in the divorce case and then moved in with his mother Jackie Griffin. No further action was taken by Curtis or Kathy in the divorce case. Curtis later died in a work related accident on September 12, 2004 while still separated from Kathy. Kathy apparently on the night before Curtis’ death had sexual relations with another man.

Jackie Griffin was appointed Administratrix of her son Curtis’ probate estate as he died without a will. Jackie sought to disinherit Kathy Curtis pursuant to KRS 292.090(2) in a declaratory judgment action in Circuit Court on the grounds that Kathy Rice was living in adultery with another man. This was alleged to occur after she separated from Curtis Rice and while he and Kathy were still married. Kathy in response moved for summary judgment in her favor that her right to inherit was not forfeited.

On that basis Jackie Griffin argued on behalf of her son’s estate (and we presume also on her own behalf) through an affidavit and testimony of a Mr. Halcomb that Kathy met him in a bar, became intoxicated and had sexual relations with him the night before Curtis’ death. Kathy on the other hand denied any such sexual encounter. There was also proof offered that Kathy may of had a child by another man other than Mr. Halcomb on June 5, 2005 within the nine-month time period involving Curtis’ death. Paternity of that child was not established at the time of the trial.

The trial court believed Mr. Halcomb to be a credible witness and found that Kathy was living in adultery and forfeited her right to any property in Curtis’ probate estate. The Court of Appeals reversed on the basis that one act of adultery was not living in adultery as required by the statute to forfeit your inheritance. The Kentucky Supreme Court affirmed the Court of Appeals.
The Kentucky Supreme Court reasoned that the statute creates two issues to consider for this case. First, whether a spouse voluntarily leaves the other, which was not at issue here because of the separation and pending divorce, and second, that the offending spouse “lives in adultery”.

A review of a Kentucky case from 1888 helped the Court reach its decision. It was opined then and reaffirmed now that, if any spouse voluntarily left the other spouse and took up with another on a periodic and recurring basis even though they did not live together, that conduct was sufficient to establish living in adultery for purposes of disinheritance under the statute. However, from the same case it was determined that one random act without more was not.

Legal Tip: Reconcile with your spouse, complete the divorce proceeding or have a pre-nuptial or post-nuptial agreement in place that would address a separation period prior to dissolution for inheritance purposes.
A full text of the Kentucky Supreme Court’s Opinion can be found at:

http://opinions.kycourts.net/sc/2011-SC-000250-DG.pdf

This case is final and can be cited as authority.

Leave a Comment:

*