The act of giving a gift is accomplished so easily that the legal consequences often escape the donor. Even when a donor stops to contemplate the legal significance of her or his act, a parental donor probably is unaware that a gift to a child may affect the child's inheritance rights in the parent's estate. Kentucky is among the minority of states which continue to presume that a parental gift is intended as an advancement to the child donee. Moreover, Kentucky is one of only two states which make the presumption irrebutable. The value of the gift is charged against the child's share of the parent's intestate estate even if the parent expressly states a contrary intention.
Kentucky's highest court has recognized that although application of Kentucky's advancement doctrine may work an injustice, the fault lies with the advancement statute and not with the court's interpretation and application of that statute. Because Kentucky's highest court has indicated its unwillingness to reconsider its interpretation and application of the advancement statute to a parental decedent's intestate property and because the statute as presently construed can cause unexpected, unintended and unfair results due to the public's lack of familiarity with the advancement concept, the time to reform Kentucky's advancement statute has come.
This article begins with a short historical overview of the advancement concept. The overview is followed by an in-depth analysis of Kentucky's advancement caselaw. Finally, the author proposes remedial legislation to correct the problems with Kentucky's current advancement statute.