This case was referred for an opinion as to the validity of a marriage between first
cousins under Kentucky State law prior to June 19, 1946. The pertinent facts of the
case are as follows:
Allen B. B~ married Della B~ on February 24, 1940, at Whitesburg, Kentucky, under
authority of a license issued by Clerk of County Court of Letcher, Kentucky. Della
B~ initially filed application for wife's benefits October 19, 1966. She stated that
she and her husband were first cousins—their fathers were brothers. No investigation
of the relationship issue was carried out at that time. She was entitled to wife's
benefits from November 1966 to July 1973, when the youngest child attained age 18.
Della B~ filed application June 22, 1983, for widow's benefits. She again stated that
she and her husband were first cousins. Kentucky State Law as stated in Kentucky Revised
Statutes Vol. 14, Ch. 402.010, indicates that marriages between persons more closely
related than second cousins shall be "incestuous and void." The applicable statute
was enacted June 19, 1946.
You have asked for our advice as to whether or not a marriage contracted between first
cousins prior to June 19, 1946, is valid under Kentucky State law.
As of 1893 Section 402.010 of the Kentucky Revised Statutes provided that:
402.010 [2096] Incestuous marriages.
(1) A man shall not marry his mother, grandmother, sister, daughter, granddaughter,
the widow or divorced wife of his father, grandfather, son or grandson, the daughter,
granddaughter, mother or grandmother of his wife, the daughter or granddaughter of
his brother or sister or the sister of his father or mother. A woman shall not marry
her father, grandfather, brother, son or grandson; the widower or divorced husband
of her mother, grandmother, daughter, or granddaughter; the son, grandson, father
or grandfather of her husband; the son or grandson of her brother or sister; or the
brother of her father or mother.
(2) If relationship is founded on marriage, the prohibition of subsection (1) shall
continue notwithstanding the dissolution of the marriage by death or divorce, unless
the divorce is for a cause that rendered the marriage originally illegal or void.
(3) This section includes illegitimate children and relatives.
(4) Marriages prohibited by this section are incestuous and void.
However, on June 19, 1946, this section was amended to provide as follows:
(1) No marriage shall be contracted between persons who are nearer of kin to each
other by consanguinity, whether of the whole or half-blood, than second cousins.
(2) Marriages prohibited by subsection (1) of this section are incestuous and void.
The 1893 statute did not designate marriage between first cousins in the listing of
incestuous marriages. Consequently, a marriage between first cousins was not prohibited
under Kentucky law until June 1946. See e~. Ex Parte 247 S.W.2d 379 (1952). Since Ms. married her first cousin prior to the
enactment of the amendments to Section 402.010, her marriage was valid under Kentucky
law.