dissenting.
Respectfully, I dissent.
The Majority Opinion is short on facts and long on new law.
These are the facts appearing uneontest-ed in the record, and not part of the Majority Opinion:
This was the second marriage for Amos Rock, the decedent. His first marriage to Menda Rock ended in her death in 1969. It lasted 48 years and resulted in ten children, seven of whom are surviving. During their marriage, Amos and Menda acquired real estate valued at approximately $36,-000. Additionally, as a result of Veteran’s disability benefits awarded to their son William, Amos and Menda received upon his death an additional $59,000. Subsequent to Amos’ marriage to Rosa Lee Rock in 1971, this money and more accumulated by his savings from these accounts was deposited in joint bank accounts, in the form of certificates of deposit, in eight equal amounts, *14seven with his surviving children and one with the new wife, Rosa Lee. As the trial court stated in its judgment:
“It appears abundantly clear from the evidence, and the Defendants concede the point, that Amos painstakingly accomplished his own estate plan to leave his estate in eight equal parts, to his seven children and his widow.”
There was no finding by the trial court that any of this was done surreptitiously or with intent to defraud the surviving widow, or even that it was done without her knowledge and consent. It was clear, as the trial court stated, that Amos’ “purpose in transferring his funds into the remaining seven survivorship moieties was clearly to assure that each child would take his or her one: eighth of his estate and that Rosa would not share therein.” This openly avowed “purpose,” in and of itself, is not fraud, let alone fraud sufficient to vitiate his inter vivos conveyance of the amounts in these accounts. As stated in Martin v. Martin, 282 Ky, 411, 138 S.W.2d 509, 514 (1940):
“After all, an action of this character is based on a fraudulent act of a husband, or intended husband, seeking to deprive a wife, or intended wife, of a right to share in his property.”
The Majority decision in the present case overrules KRS 391.315(1), the portion of the Probate Code intended to control joint accounts, which provides in pertinent part:
“Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.”
The Majority Opinion does this by stating there is a “limitation, necessarily implied in law” on this statute, a limitation supposedly arising by reason of the inchoate dower interest in a spouse’s property. An inchoate interest is one “which is not a present interest, but which may ripen into a vested estate, if not barred, extinguished, or divested.” Black’s Law Dictionary, 5th ed. 1979. Presumably, because of this inchoate interest, a married person is “not legally entitled to dispose of [his personal funds] in such a manner.” This is new law not now justified by any previous decision of this Court. It is a law that may put in jeopardy any financial transaction with a married person and all property jointly owned except where such property is jointly held with one’s spouse.
Although one might assume otherwise from a casual reading of the Majority Opinion, a dower interest in this Commonwealth is not a constitutionally protected common law right, but an interest defined by a statute, KRS 392.020, and as such it is confined to the “surplus real estate of which the other spouse ... was seized of an estate in fee simple at the time of death,” and “the surplus personalty left by the decedent.” There is no inherent limitation on a married person’s right to dispose of his or her separate property, to spend or make gifts inter vivos, simply by reason of marriage, and such a blanket prohibition would create chaos in the marketplace, placing all transactions by married persons under a cloud. There is, of course, a restriction on practicing fraud, on one’s spouse or on anyone else for that matter, but Amos Rock did not practice fraud simply by placing his individual funds in joint survivorship certificates of deposit with his children. Quite obviously, when KRS 391.-315(1) provides that property deposited in a joint account shall at death belong to the survivor, it does not apply to property proved to have been placed in such account with intent to defraud a third party, spouse or otherwise. But fraud was not proved in this case, and KRS 391.315(1) should prevail in its absence.
Any lingering doubt as to whether KRS 391.315(1) applies to the present situation is put to rest two sections later by KRS 391.-325, which states:
“Any transfers resulting from the application of KRS 391.315 are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary.”
*15So, how does this property, these joint accounts, get to be surplus at death, subject to the dower statute? It doesn’t, unless there is proof someone has been defrauded. The Majority Opinion has not attempted to discuss KRS 391.325, or to explain why it has no impact in this case. Nevertheless, it appears that both of these sections (KRS 391.315 and .325) were adopted in 1976 when the General Assembly adopted Article VI of the Uniform Probate Code to codify the rights of parties to survivorship bank accounts. The effect of the present decision is to create controversy about the ownership of the funds on deposit in such accounts when the statutory purpose was to dispel such controversy-
The Court of Appeals held KRS 391.315 and .325 applied to the present transactions, the inter vivos deposits in joint names with right of survivorship, because “we cannot say from a review of the record below that any evidence of fraud on the part of Amos was established below.” I agree.
The Majority Opinion has gone to such extreme that no property may henceforth be deposited by a married person in a joint account with anyone other than his spouse free from a dower interest which will become vested if his or her spouse survives. It is now the rule of this Commonwealth that a married person cannot dispose of his or her own money unless his spouse joins in the transaction. I disagree.
LAMBERT, J., joins this dissent.