Status of Same Sex Marriage in Kentucky

Same Sex Marriage Under Kentucky Law

Marriage is defined in the Kentucky Revised Statutes as “refer[ring] only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.” KRS 402.005.

Kentucky recognizes marriages entered into by a Kentucky resident that married in another state so long as that marriage is not against Kentucky public policy. Types of marriages that are against public policy are those involving incest, bigamy, or where at least one party is mentally disabled or insane. See KRS 402.020. According to KRS 402.040(2), “[a] marriage between members of the same sex is against Kentucky public policy…” Therefore, at present in Kentucky, same sex marriage is viewed as equally hostile to the institution of marriage as marriage between close relatives, for example. These statutes were last revised in 1998.

The Kentucky Revised Statutes go a step further in refusing to recognize same sex marriage achieved in another state. According to KRS 402.045(1), “[a] marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.” Kentucky courts shall not enforce any rights granted by virtue of same sex marriage or divorce in another state. KRS 402.045(2). The Federal Defense of Marriage Act, 28 USC 1738C, allows the states to refuse to give effect to a same sex marriage entered into in another state, as Kentucky does.

Legal Alternatives to Marriage

Some states recognize civil unions, domestic partnerships, or other legal relationships available to same sex couples. Kentucky law does not provide for any such arrangements. However, there are several legal mechanisms to observe the relationship and/or provide security for one’s partner:

  1. Name Change – through the legal name change process, one partner may take the last name of another. This provides the appearance of a marital relationship in the absence of laws allowing it for same sex couples.
  2. Cohabitation Agreement – a cohabitation agreement, sometimes called a domestic partner agreement, is an express contract between non-married parties which determines the rights and responsibilities during their relationship and property division issues should the couple ultimately break up.
  3. Estate Planning
    • Will – if a married person dies without a will, his or her spouse will take half of the deceased’s property by default. See KRS 392.020. Kentucky statutes do not provide the same default rules for unmarried couples. However, most people prefer to utilize a will to determine how property will be divided at their death. Straight and gay couples alike may list their significant other as the person who will take most or all of their property upon their death. And because of the default intestacy rules, if a person does not list his or her same sex partner in the will, property will pass to blood relatives (parents, then siblings, etc.), or potentially to the state.
    • Durable Power of Attorney – via a durable power of attorney, one person may designate another to act on his or her behalf in financial and legal matters, should he or she become physically or mentally incapacitated.
    • Health Care Decision-Making – various documents may designate one’s medical preferences or appoint another person to do so if he or she becomes unable to do so on their own: Living Will, Designation of Health Care Surrogate, Durable Power of Attorney for Health Care, Health Care Directive.