A couple’s marital status determines who gets the estate

by Mandy Hicks

marital status estateBy Nathan Vinson, Attorney

English, Lucas, Priest & Owsley, LLP

Facebook has a neat little box that you can check to indicate your relationship status. There are some options that are clear cut – or at least seem to be: married, divorced, single. There’s another option that’s becoming more popular as of late called “it’s complicated.” It’s a handy box to check when life is messy.

Unfortunately, though, there’s no “it’s complicated” box to check in legal documents. In the eyes of the law, you’re either single, legally separated or married. There’s no in-between for marital status.

The lives of Luther and Shirley Mills definitely fell under the “it’s complicated” category, and the Kentucky Court of Appeals recently ruled on whether or not the couple was legally married at the time of Luther’s death. At stake was Luther’s estate.

After Luther’s estate was filed for probate, Shirley asked the court to determine if she and Luther were married at the time of his death. Shirley argued that they were, in fact, married at the time of Luther’s death in October 2011, and she was entitled to her share of his estate.

Here’s why it wasn’t as easy as checking for a marriage license to determine the couple’s marital status. Luther and Shirley were married for the second time in 1991. After separating again in July 1993, their marriage to each other was once again dissolved by the court in 1994. Just two days after the court entered the divorce decree, Luther asked the courts to clarify the order dividing their property so he could be awarded a pickup truck lost in the divorce, and Shirley asked that the issues of maintenance and future ownership of a coin collection be re-examined by the court. Though Luther asked that the court’s final order as to property division be set aside, neither spouse asked for the decree dissolving the marriage to be set aside.

In September 1994, the court set aside the entire order, including the decree dissolving the marriage, and ordered a new trial, which neither party attended. The matter was dropped by the Mills and by the courts. Thereafter, the Mills lived together from time to time, and sometimes filed tax returns indicating they were married and sometimes filed returns indicating they were single. In one court appearance concerning a domestic violence incident, a judge remarked that the two might be legally divorced, but the judge wasn’t sure.

Upon Luther’s death in 2011, Shirley brought an action seeking the district court to declare she was still married to Luther at his death. The district court (and subsequently the circuit court) both determined that she was married to Luther at his death based on the original 1994 order setting aside the divorce decree.  In the Court of Appeals, however, the fact that neither party asked the actual divorce decree to be set aside weighed heavily in favor of the conclusion that Luther and Shirley were divorced. Ultimately, the Court of Appeals agreed with the lower courts but for a slightly different reason. The Court of Appeals determined that, as persuasively argued by Shirley, Luther filed a motion to set aside the order only two days after the divorce decree and order was entered. Though the motion was made for the purpose of asking the judge to reconsider the property division between the two, the order contained the property division order and the divorce decree. Under Kentucky statutory law, an order does not become final until 10 days after it is entered. The filing of motions by both parties caused to order to sort of “freeze” until the judge ruled on the motions. Upon the judge’s September ruling to set aside the decree and order, it was official that the decree and order never became final. Another divorce decree was never made – thus, the parties were still married.

Relationships can, indeed, be complicated – both in the court system and in everyday life. We always recommend solving such problems before a death occurs so that families know what to expect. If you’d like to discuss your estate plans with an experienced attorney, please contact me, Nathan Vinson, an attorney at English, Lucas, Priest and Owsley, at (270) 781-6500 or through e-mail at