Spousal Election According to Indiana Law
A spousal election to take against a Final Will and Testament has been a historic part of Property Rights for decades; if not longer. It supports the timed notion that property and marriage are critical for a functioning society; and as such property gained during the marriage should be shared with the spouses even after death. This spousal election means that a spouse has a choice to either (a. accept what was left to him or her in the decedent’s Final Will and Testament, or (b. claim the share of the estate that is allowed by Indiana state law.
Indiana Code 29-1-3-1 (part of the Indiana Probate Code) spells out exactly how and when this spousal election can be utilized. If the couple has been together exclusively (meaning they have not been married previously), then the surviving spouse is entitled to 50% of the net personal property and real estate of the deceased spouse. However, if a second or subsequent spouse of the decedent elects to take against the will, then, assuming the decedent has children from a previous marriage, he or she is entitled to 33% of the net personal property. In addition to this 33%, they can also receive 25% of the fair market value of any real property (calculated at the time of death of the decedent).
In many cases, a decedent may leave their surviving spouse a portion of their belongings, often times along with other meaningful bequests and devises, but the total amount of these items and money is not near the amount allowed by state law. As a spouse, you do not want to choose between (a. retaining items of significant emotional value and deep meaning, but without much monetary value, or (b. retaining the maximum amount of funds from the estate but being forced to sell important items. After all, if you elect to take against a will, it’s an “either / or” decision, right? Not quite. Thinking ahead, Indiana lawmakers identified this problem, and the Indiana Code now states that you can choose to retain those specific bequeathed items and devises, and receive the rest of your entitled balance in either cash or property until you reach the amount outlined in Indiana law discussed above.
The decision to either elect against a decedent’s Will, or simply be content with what was given to you in the decedent’s Will, should not come lightly. Many times, variables and important decisions are at play. However, always be aware that you do have options when the day comes to inherit property from your spouse.