September 30, 2012
"Living In Adultery" In Kentucky
A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.
The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.
The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.
At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.
The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.
The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.
Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."
There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.
The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.
The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)
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