dissenting.
I agree with the majority that the Constitution of Kentucky has delegated to the General Assembly the authority to determine what jurisdiction shall be exercised by the district court. Ky. Const. § 113(6). I do not agree that the General Assembly has vested the district court with jurisdiction to exercise an incompetent surviving spouse’s statutory right to elect against the will of his or her deceased spouse. KRS 392.080.
This issue has nothing to do with probate or administration, or even the powers of a guardian appointed pursuant to KRS 387.500, et seq. The right to elect against a will is personal to the surviving spouse, Harding’s Adm’r v. Harding’s Ex’r, 140 Ky. 277, 130 S.W. 1098, 1099 (1910), and a guardian has no right to elect against a will on behalf of his ward. Instead, that election can be exercised only by a court of equity upon a finding that to do so would be in the ward’s best interests. Ramsey’s Ex’r v. Ramsey, 243 Ky. 202, 47 S.W.2d 1059, 1061-62 (1932); Miller v. Keown, 176 Ky. 117, 195 S.W. 430, 432 (1917); Maess v. Greenfield, Ky.App., 547 S.W.2d 777, 782 (1977); cf. Strunk v. Strunk, Ky., 445 S.W.2d 145 (1969); Harding’s Adm’r v. Harding’s Ex’r. supra, at 1099. The district court is not a court of equity. In fact, matters of equity are specifically excluded from the jurisdiction of the district court. KRS 24A.120(1). This kind of action seeking a “substituted judgment” for the exercise of a personal right is usually brought in the form of a declaratory judgment action, see DeGrella by and through Parrent v. Elston, Ky., 858 S.W.2d 698 (1993), which must be brought in a court of *933general jurisdiction, ie., the circuit court. KRS 418.040; KRS 23A.010(1).
Even if this action could be characterized as one involving “probate,” the probate jurisdiction of the district court is limited to matters not contested in an adversary proceeding. KRS 24A.120; West v. Goldstein, Ky., 830 S.W.2d 379, 383 (1992); Lee v.. Porter, Ky.App., 598 S.W.2d 465, 467 (1980). This proposed election is being contested by the executrix of the deceased spouse’s estate; thus, this is an adversary proceeding over which the district court has no jurisdiction. Cf. Vega v. Kosair Charities Committee, Inc., Ky.App., 832 S.W.2d 895, 897 (1992).
Accordingly, I respectfully dissent and would affirm the decisions of the Jefferson District Court, the Jefferson Circuit Court, and the Court of Appeals.
JOHNSTONE and WINTERSHEIMER, JJ., join this dissenting opinion.