No, Kentucky is not a community property state. Instead, it follows the common law system of equitable distribution. This means marital property is divided fairly—but not always equally—based on several factors, such as each spouse’s contributions to the marriage, their financial circumstances, and whether any property is considered separate. Unlike community property states, where assets acquired during the marriage are automatically split 50/50, Kentucky judges have discretion to determine what’s most equitable in each case.
However, Kentucky does give married couples the option to create a community property trust for estate planning purposes. This tool allows spouses to classify certain assets as community property, which may help reduce estate taxes.
If you’re considering divorce or need help navigating property division, call O’Bryan Law Offices at (502) 339-0222 for guidance from an experienced marital property attorney.
What Is Community Property?
Community property refers to the property or assets acquired during the existence of the marriage that belongs to both individuals. These assets or debts accrued during the marriage, regardless of which spouse bought them or took on the debt. States that follow community property law evenly split these assets and debts when couples divorce.
Are Marital Assets Separate or Community Property in Kentucky?
Kentucky follows the separate property statute. While state courts equitably divide a divorcing couple’s marital assets, they don’t always split everything down the middle.
Does Kentucky Recognize Community Property?
Although Kentucky is an equitable distribution state, the Community Property Trust Act, enacted in July 2020, allows married couples to designate all or part of their property as community property. This property is placed in a community property trust.
In addition, Kentucky enacted the Uniform Disposition of Community Property Rights at Death Act. Under this act, if a couple married in a community property state and then moved to a separate property state, they are able to retain their pre-existing property rights. This act protects widowed spouses, as it applies to the surviving spouse and the disposition of the couple’s personal and real property.
Kentucky Community Property Trust
In Kentucky, a married couple is able to opt into community property treatment by creating a valid trust. Spouses must ensure the following under this legislation to build a valid community property trust:
- One or both spouses must transfer the assets to the trust.
- Verbiage within the trust document must state that it acts as a Kentucky community property trust.
- The trust must also contain a capitalized warning stating the far-reaching legal ramifications of the trust, as well as the potential impact on spousal rights.
- Both spouses must sign the trust document.
- One or both spouses may be trustees; however, at least one trustee must be a Kentucky resident. A trustee may also be a bank or trust company.
What Is Considered Marital Property in Kentucky?
Dividing up property during a divorce can easily become a major point of contention. Before the court can proceed with dividing the property, it must first determine whether the couple’s property is owned separately (acquired pre-maritally by one spouse) or jointly (acquired during the course of the marriage). From here, the court equitably divides the remaining property between the spouses.
Marital Property
Any property that was not secured by one spouse prior to marriage, or separate, is considered marital property. Kentucky divides this property equitably. Marital property includes:
- Money, retirement accounts, real estate, and other non-separate property acquired by either spouse during the marriage.
- Property co-owned by spouses or comingled and acquired before the marriage, such as real estate.
- Assets such as a separate business or home that’s value appreciated during the marriage because of marital contributions. For example, a rental house that increased in value after the marriage because of improvements made by the spouses.
Separate Property
Non-marital or separate property is not divided when a couple divorces and often becomes a source of disagreement. This often includes property:
- acquired before the marriage
- that a spouse inherited during the marriage
- that was given by a third party to one spouse
- gained during the marriage by selling or exchanging separate property
- set aside as separate by a premarital agreement
Under Kentucky’s community property laws, separate property may lose its status as “separate” if a spouse comingles or mixes the property acquired separately with marital property. For example, if a spouse inherits money and then deposits that money into the couple’s joint bank account, the inheritance is no longer considered separate property. This also applies to one spouse’s premarital bank accounts if the other spouse makes deposits in the account.
Additionally, a spouse may convert separate property to marital property by changing a title from individual to joint ownership. If this occurs, the court presumes the spouse gifted the property to the marriage.
Determining the Value of the Marital Property
When the court decides which property is marital, it assigns each item a monetary value. A property valuation helps a judge distribute the property equitably in the divorce.
How Does Property Get Divided in Kentucky?
Property division for divorces includes more than simply dividing real estate and cars. The courts must also equitably divide all cash, bank accounts, retirement accounts, and debts.
Spouses have a few options for dividing their property in Kentucky. They may determine a settlement outside of court. The court still reviews the agreement and usually approves all written agreements in which both spouses received legal counsel. A judge makes decisions for a married couple if they can’t reach a property agreement independently.
Kentucky law splits property equitably, or fairly, but not always equally. One spouse may receive a higher share of the marital property after a judge considers relevant factors such as:
- Marriage length
- Property value awarded to each spouse
- Each spouse’s contribution to obtaining marital property, including those of a stay-at-home spouse
- A spouse’s economic circumstances and needs, including considerations for having a custodial parent reside in the family home with the children
How Does Kentucky Divide Debts?
The state looks at several factors when dividing debts. These factors include:
- Each spouse’s debts and liabilities
- The economic standing of each spouse
- The reason for the debt (Did a spouse’s reckless behavior rack up gambling debt?)
Should the court fully assign a debt to one spouse, creditors may still pursue the other spouse for payment. In such a situation, you may be able to use the court order to remove your name from the account.
O’Bryan Law Offices has helped clients resolve their debt for nearly 30 years. Please contact our marital property attorneys today with questions about Kentucky property division, debt, and Kentucky divorce laws.
What Legal Rights Do Unmarried Couples Have in Kentucky?
Kentucky law does not recognize common law marriage, nor does it provide property rights to unmarried couples, no matter how long they’ve lived together or how committed their relationship may be. If a cohabiting couple separates, there is no legal process for dividing jointly acquired assets or debts unless those rights are clearly defined in a written contract. Unlike divorcing spouses, unmarried partners are not entitled to spousal support (maintenance) and have no automatic claim to the other’s property, including homes, personal belongings, or shared accounts.
To avoid costly disputes, unmarried couples should consider creating a cohabitation agreement. This document can outline key financial and legal arrangements, including:
- How shared property and debts will be handled
- Expectations for household contributions or joint purchases
- What happens to assets if the relationship ends
Without such an agreement, one partner may need to file a contract, partnership, or property claim to resolve disputes—an uncertain and often expensive process.
Do Same-Sex Unmarried Couples Have Any Legal Protections in Kentucky?
Kentucky does not recognize domestic partnerships or civil unions, which means LGBTQ+ couples receive no automatic legal rights when it comes to shared property, medical decisions, or inheritance. To protect their interests, same-sex unmarried couples should consider a cohabitation agreement and proactive estate planning to clearly define rights and responsibilities within the relationship and beyond.
What Are My Rights If My Name Isn't on the Deed But I'm Married in Kentucky?
In Kentucky, your name does not need to be on the deed for you to have an ownership interest in property acquired during the marriage. Under Kentucky’s equitable distribution laws, any asset purchased by either spouse during the marriage is typically considered marital property, regardless of whose name appears on the title. This means that if your spouse bought a home while you were married, you still have legal rights to it—even if only their name is on the deed.
The court focuses on when the property was acquired, not just whose name is listed. During a divorce, judges consider factors like each spouse’s contribution to the marriage, financial needs, and the value of marital assets before dividing property fairly. So, even if the deed isn’t in your name, you may be entitled to a share of the property’s value.
How Long Do You Have to Live Together to Be Common Law Married in Kentucky?
There is no length of cohabitation that creates a common law marriage in Kentucky. Under state law, simply living together—even for many years—does not grant a couple the legal status of marriage. Kentucky does not recognize common law marriage created within its borders. This was made clear in the case Pendleton v. Pendleton, 531 S.W.2d 507 (Ky. 1976), where the Kentucky Supreme Court held that common law marriages are not valid if contracted in Kentucky.
However, Kentucky will recognize a valid common law marriage from another state, as long as it was formed according to that state’s laws. In Glidewell v. Glidewell, 790 S.W.2d 925 (Ky. Ct. App. 1990), the court confirmed that if a couple legally established a common law marriage in a state that permits it, Kentucky courts must treat it as a valid marriage. To prove such a marriage exists, the couple must show that:
- The other state allows common law marriage
- They met that state’s legal requirements (typically, mutual agreement to be married and holding themselves out publicly as spouses)
For couples who believe they were “common law married” in Kentucky, the legal consequences can be significant. Since the state does not recognize such unions, there is no right to file for divorce, seek spousal support, or divide property under Kentucky’s dissolution laws. When these relationships end, former partners must rely on alternative legal claims such as:
- Contract claims (oral or written agreements about shared assets)
- Partnership claims (when both contributed to a business or property)
- Constructive or resulting trusts
- Quantum meruit (to recover value of services rendered)
Because these remedies are more complex and uncertain than divorce proceedings, it’s strongly recommended that cohabiting couples take steps—such as drafting a cohabitation agreement—to protect their rights in advance.
The Experienced Marital Property Attorneys at O’Bryan Law Offices Can Help
The legal team at O’Bryan Law Offices understands the two property regimes that factor into divorces and property division. Choosing divorce and enduring the process of divvying your property is emotionally and financially draining. Our trusted and compassionate marital property lawyers are here to help you through this difficult time.
Splitting assets with your spouse not only impacts your finances, but it also assigns you a portion of their debt. This can have long-lasting implications for you. A Chapter 7 bankruptcy or Chapter 13 bankruptcy may be the solution if you leave a marriage with unmanageable debt.
Please call us at (502) 339-0222 for a free initial consultation about your legal situation. O’Bryan Law Offices helps our clients find hope in their financial journey and start anew.
We also represent clients in Kentucky uncontested divorce, Kentucky divorce-related bankruptcy, protecting assets in bankruptcy Kentucky, and more.
Frequently Asked Questions
No, Kentucky is not a 50/50 community property state. It follows equitable distribution laws, meaning the court divides marital property in a way it deems fair—not necessarily equal—based on factors like each spouse’s contributions, financial circumstances, and future earning potential.
Marital property in Kentucky generally includes all assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. This can include real estate, income, retirement accounts, vehicles, and even certain types of debt.
Kentucky does not recognize common-law marriage, no matter how long a couple has lived together. Simply cohabiting—even for decades—does not create a legal marriage under Kentucky law. However, the state may recognize a common-law marriage legally established in another state that allows it.
