CHAPTER 3. TAKING AGAINST A WILL AND RIGHTS OF PRETERMITTED HEIRS
IC 29-1-3
Chapter 3. Taking Against a Will and Rights of Pretermitted Heirs
IC 29-1-3-1
Limitations and conditions
Sec. 1. (a) When a married individual dies testate as to any part ofthe individual's estate, the surviving spouse is entitled to take againstthe will under the limitations and conditions stated in this chapter.The surviving spouse, upon electing to take against the will, isentitled to one-half (1/2) of the net personal and real estate of thetestator. However, if the surviving spouse is a second or othersubsequent spouse who did not at any time have children by thedecedent and the decedent left surviving a child or children or thedescendants of a child or children by a previous spouse, the survivingsecond or subsequent childless spouse shall upon such election takeone-third (1/3) of the net personal estate of the testator plus anamount equal to twenty-five percent (25%) of the remainder of:
(1) the fair market value as of the date of death of the realproperty of the testator; minus
(2) the value of the liens and encumbrances on the real propertyof the testator.
In determining the net estate of a deceased spouse for the purpose ofcomputing the amount due the surviving spouse electing to takeagainst the will, the court shall consider only such property as wouldhave passed under the laws of descent and distribution.
(b) When the value of the property given the surviving spouseunder the will is less than the amount the surviving spouse wouldreceive by electing to take against the will, the surviving spouse mayelect to retain any or all specific bequests or devises given to thesurviving spouse in the will at their fair market value as of the timeof the decedent's death and receive the balance due in cash orproperty.
(c) Except as provided in subsection (b), in electing to takeagainst the will, the surviving spouse is deemed to renounce all rightsand interest of every kind and character in the personal and realproperty of the deceased spouse, and to accept the elected award inlieu thereof.
(d) When a surviving spouse elects to take against the will, thesurviving spouse shall be deemed to take by descent, as a modifiedshare, the part of the net estate as does not come to the survivingspouse by the terms of the will. Where by virtue of an electionpursuant to this chapter it is determined that the surviving spouse hasrenounced the surviving spouse's rights in any devise, either in trustor otherwise, the will shall be construed with respect to the propertyso devised to the surviving spouse as if the surviving spouse hadpredeceased the testator.
(Formerly: Acts 1953, c.112, s.301.) As amended by Acts 1982,P.L.171, SEC.14; P.L.168-1988, SEC.1; P.L.176-2003, SEC.4;P.L.61-2006, SEC.2.
IC 29-1-3-2
Time
Sec. 2. (a) Except as provided in subsection (b), the election by asurviving spouse to take the share hereinbefore provided must bemade not later than three (3) months after the date of the orderadmitting to probate the will against which the election is made.
(b) If, at the expiration of such period for making the election,litigation is pending to test the validity or determine the effect orconstruction of the will or to determine the existence of issuesurviving the deceased, or to determine any other matter of law orfact which would affect the amount of the share to be received by thesurviving spouse, the right of such surviving spouse to make anelection shall not be barred until the expiration of thirty (30) daysafter the final determination of the litigation.
(Formerly: Acts 1953, c.112, s.302.) As amended by P.L.238-2005,SEC.7.
IC 29-1-3-3
Forms; recording; service
Sec. 3. (a) The election to take the share hereinbefore providedshall be in writing, signed and acknowledged by the surviving spouseor by the guardian of his estate and shall be filed in the office of theclerk of the court. It may be in the following form:
I, A.B., surviving wife (or husband) of C.D., late of the county of____________ and state of _______, do hereby elect to take my legalshare in the estate of the said C.D. and I do hereby renounceprovisions in the will of the said C.D. inconsistent herewith.
Signed,
(Signature)
(Acknowledgment)
(b) Said election shall be recorded by such clerk in the record ofwills, marginal reference being made from such record to the bookand page in which such will is recorded, and from the record of suchwill to the book and page where such election is recorded.
(c) The clerk shall cause a copy of said election to be served uponthe personal representative and his attorney of record by UnitedStates mail addressed to such persons at their respective addresses asshown by the petition for probate of will and appointment ofpersonal representative.
(Formerly: Acts 1953, c.112, s.303; Acts 1969, c.67, s.1; Acts 1975,P.L.288, SEC.2.)
IC 29-1-3-4
Personal right; election by attorney in fact or guardian
Sec. 4. (a) Except as provided in subsection (b), the right ofelection of the surviving spouse is personal to the spouse. It is nottransferable and cannot be exercised subsequent to the spouse'sdeath. A person with a valid power of attorney for the survivingspouse may elect for the spouse if the power of attorney has generalauthority with respect to estates as provided in IC 30-5-5-15(a)(4). If
the surviving spouse is a protected person, the court may order theguardian of the spouse's estate to elect for the spouse.
(b) The spousal election may be exercised subsequent to thespouse's death under the following circumstances:
(1) The surviving spouse died before the election could bemade.
(2) The election is being made to recover Medicaid benefits thatwere paid on behalf of the deceased surviving spouse.
The office of Medicaid policy and planning may exercise the right ofelection under this subsection. The spousal election is onlyenforceable up to the amount of Medicaid benefits that were receivedand the amount may only be distributed to the office of Medicaidpolicy and planning.
(Formerly: Acts 1953, c.112, s.304.) As amended by P.L.33-1989,SEC.35; P.L.252-2001, SEC.10; P.L.246-2005, SEC.213.
IC 29-1-3-5
Binding effect; change
Sec. 5. An election by or on behalf of a surviving spouse to takethe share provided in section 1 of this chapter once made shall bebinding and shall not be subject to change except for such causes aswould justify an equitable decree for the recission of a deed.
(Formerly: Acts 1953, c.112, s.305.) As amended by Acts 1982,P.L.171, SEC.15.
IC 29-1-3-6
Waiver of right
Sec. 6. (a) The right of election of a surviving spouse given undersection 1 of this chapter may be waived before or after marriage bya written contract, agreement signed by the party waiving the rightof election, after full disclosure of the nature and extent of such right,if the thing or the promise given such party is a fair considerationunder all the circumstances.
(b) The promise of marriage, in the absence of fraud, is sufficientconsideration in the case of an agreement made before marriage. Anagreement waiving a right of election may be filed in the samemanner as provided for the filing of an election under section 3 ofthis chapter.
(Formerly: Acts 1953, c.112, s.306.) As amended by P.L.283-1987,SEC.3.
IC 29-1-3-7
Failure to elect; intestate succession
Sec. 7. When a surviving spouse makes no election to take againstthe will, he shall receive the benefit of all provisions in his favor inthe will, if any, and shall share as heir, in accordance withIC 29-1-2-1, in any estate undisposed of by the will. The survivingspouse is not entitled to take any share against the will by virtue ofthe fact that the testator made no provisions for him therein, exceptas he shall elect pursuant to IC 29-1. By taking under the will or
consenting thereto, he does not waive his right to the allowance,unless it clearly appears from the will that the provision therein madefor him was intended to be in lieu of that right.
(Formerly: Acts 1953, c.112, s.307.) As amended by Acts 1977,P.L.296, SEC.1; P.L.176-2003, SEC.5.
IC 29-1-3-8
Afterborn or adopted children; omitted heirs
Sec. 8. (a) When a testator fails to provide in his will for any ofhis children born or adopted after the making of his last will, suchchild, whether born before or after the testator's death, shall receivea share in the estate of the testator equal in value to that which hewould have received if the testator had died intestate, unless itappears from the will that such omission was intentional, or unlesswhen the will was executed the testator had one (1) or more childrenknown to him to be living and devised substantially all his estate tothe spouse who survives him.
(b) If, at the time of the making of his will, the testator believesany of his children to be dead, and fails to provide for such child inhis will, the child shall receive a share in the estate of the testatorequal in value to that which he would have received if the testatorhad died intestate, unless it appears from the will or from otherevidence that the testator would not have devised anything to suchchild had he known that the child was alive.
(Formerly: Acts 1953, c.112, s.308.)