A Surviving Spouse’s Right to Take Against a Will 

by | Aug 1, 2014 | Estate Planning | 0 comments

A valid will, under most circumstances, allows an individual to transfer assets after death.  With few exceptions, the instructions in the will are followed and property transfers as per the decedent’s wishes. However, Indiana law does not allow a married person to exclude their surviving spouse from their will.  In fact, a surviving spouse is entitled to a certain percentage of the deceased spouse’s estate whether or not that spouse was included from the will and even if the will specifically states that the surviving spouse shall not receive any property.  A surviving spouse may waive the right to receive his or her elective share under the will and the process to obtain such a waiver is discussed below.

A surviving spouse may elect to take against the will of his or her deceased spouse and is entitled to one-half of the deceased spouse’s net personal property and real estate.  I.C. 29-1-3-1(a). If the surviving spouse is a subsequent spouse who (1) did not have children with the deceased spouse and (2) the deceased spouse left surviving children or decedents from a previous marriage, then the surviving spouse can elect to take one-third of the net personal estate, plus twenty-five percent of the remainder of the fair market value (as of the date of death) of real property, minus any liens and encumbrances. I.C. 29-1-3-1(a). 

We often hear from clients who believe that if they leave their spouse a small amount of cash or property under the will – or specifically exclude their spouse from their will – that this prevents their spouse from taking any property.  Indiana law, however, still allows the surviving spouse to take against the will and to receive the amounts described in the previous paragraph even if they are given a small share under their spouse’s will.

The historical roots of this law can be traced back to the English practices of curtsey and dowery where spouses were entitled to a certain share of their spouse’s property.  It also protects spouses from losing property which was acquired through marriage. 

In some circumstances, it may make sense for a spouse to exclude their surviving spouse from their will.  For example, if a couple gets married later in life and they both have children from previous marriages, they may decide to not include their spouse in their will and instead leave everything to their children.  Obviously this is a very personal decision that must be made by each family.  If you do decide not to include your spouse in your will, there are certain precautions you must take.

Under the Indiana code, a spouse may waive his or her right to take against the will by signing a contract waiving such right. I.C. 29-1-3-6(a). Before singing the waiver, the spouse must be fully informed of the consequences of signing such a document.  The waiver can be filed in Court after the estate is opened and it will protect the deceased spouse’s will from from an election by the surviving spouse. Note that you will need such a waiver even if you decide to leave your spouse a small share under the will, as the spouse may elect to take against the will to ensure he or she receives their statutory share.

Many couples forego officially signing a waiver and simply orally agree to one another that they will not take against the will.  Again, this is a personal decision that every family must make together.  We have, however, seen spouses who pledge not to take against their spouse’s will, but later decide to do so.  This is a decision that a couple must make together.

If you have any questions about the waiver process, or about electing to take against the will, you may contact Ken or Sara at 317-931-0944 or info@bennettmcclammer.com.



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