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 firstname.lastname@example.org.
In 2013 the Indiana legislature created a new kind of advanced directive form called the Physician Orders for Scope of Treatment form, or POST. This form is meant to allow chronically ill patients to dictate their end-of-life care on a form that will travel with them from facility to facility and will ensure they receive consistent care. The form discusses whether cardiopulmonary resuscitation (CPR) may be administered, whether or not to administer life support measures, antibiotics, and artificial nutrition.
A POST form may be filled out by any “qualified person” including any individual who has any of the following:
The form may be filled out by the individual, if over 18, or his or her representative (health care representative, healthcare power of attorney, or guardian, see I.C. 16-36-6-7(a)). If an individual is under the age of 18 that individual cannot complete the POST, unless certain requirements are met under I.C. 16-36-1-3(a)(2) (for example, the minor is emancipated or not receiving support from his or her parents).
The form should be filled out in consultation with a health care provider and it must be signed by a physician. The POST allows patients to designate a healthcare representative who is authorized to make decisions on behalf of the patient if the patient is no longer competent or well enough to make those decisions for him- or herself. Note that if an individual appoints a healthcare power of attorney on the POST form, that declaration supersedes any such appointment on any other form. See I.C. 16-36-6-20.
A copy of the form should be kept in the patient’s medical records. The original POST is considered the personal property of the individual and should be kept with the patient at all times.
The POST can be revoked in a variety of ways, including in writing or orally. The form is meant to be flexible and the statute allows a patient to change the form at any time. A patient may also change his or her mind during treatment and orally request different treatment than is stated on the POST.
The POST will likely be very valuable for chronically ill patients, especially for those who frequently move between facilities. This form, however, should be used in conjunction with a properly tailored estate plan that includes a last will and testament, general durable power of attorney, healthcare power of attorney, and/or advanced healthcare directives.
For example, if a chronically ill patient no longer has the capacity to fill out the POST, then that patient’s health care representative may complete the form. However, that patient must have first appointed the health care representative through his or her estate planning documents. Additionally, a healthcare power of attorney will allow your representative broader powers to make healthcare decisions for you, as the POST is limited to the three categories as described on the form. An advanced healthcare directive (or living will) similarly allows you to broadly describe any medical interventions you wish to or don’t wish to receive. As such, the POST is another useful tool that should be part of your overall estate plan.
If you need assistance with your estate plan or have questions about the POST, please contact Ken or Sara.
Focusing on legal issues relating to Indiana's elders as well as trust & estate planning & administration.
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