Share of Spouse

When someone dies without a will, they are said to have died intestate. Intestacy laws govern who is entitled to the decedent’s property, and the laws tend to favor the decedent’s spouse and children. If the decedent does not have any living children or parents, then the surviving spouse inherits the entire estate. If the decedent has a surviving spouse and living children with that spouse, then the surviving spouse inherits ½ of the intestate estate and the living children split ½ of the intestate estate. If the decedent has a surviving spouse with no living children together but a living child from a previous spouse, the surviving spouse inherits ½ of the intestate personal property and ¼ of the fair market value of the decedent’s real estate, minus the value of any liens or encumbrances on that real estate; the living children inherit the remainder. If the decedent has a surviving spouse and parent(s) and no living children, the surviving spouse inherits ¾ of the intestate estate and the parents inherit ¼ of the intestate estate. In almost all situations, if a decedent dies without a will, the surviving spouse will inherit the decedent’s property, with their share dependent on the remaining living relatives of the decedent.

Elective Share

The elective share is another tool used to protect surviving spouses in Indiana. It ensures that a spouse is not disinherited or not adequately accounted for.  A surviving spouse can elect to “take against the will.” In Indiana, if a married person dies and they had a will, their surviving spouse is generally entitled to ½ of the net personal and real estate of the decedent, even if the will does not provide for that. However, the surviving spouse will only be entitled 1/3 of the net personal estate plus ¼ of the remainder of the fair market value real property minus the value of the liens and encumbrances on the real property if they are not the decedent’s first spouse and the decedent had at least one child with a previous spouse. The property subject to the elective share is that which would have eligible to be inherited if the decedent had died intestate.

Spousal Allowance

The spousal allowance is meant to provide financial support for the surviving spouse immediately following the death of the deceased spouse. In Indiana, the surviving spouse is entitled to an allowance of $25,000 from the estate regardless of whether the decedent had a will. If there is no surviving spouse, then the decedent’s children who are under 18 will be entitled to the same amount, divided equally among them. The claims may be against either or both personal property and real property, and the claims for allowance must be asserted no later than 90 days after an order commencing estate administration.

Revocation by Divorce

Most people probably would not want their ex-spouse taking from their estate, and Indiana law is written to carry out that assumption. If a decedent made a will and then later got divorced or had their marriage annulled, that act automatically revokes any provisions in the will in favor of the former spouse. The will provisions are automatically reinstated if the testator remarries the former spouse.

If you have any questions or want assistance with information relating to spousal protections or estate planning, please reach out to one of our attorneys at McNeelyLaw LLP by calling (317)825-5110.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.