§ 29-1-3-1 — Limitations and conditions

Indiana § 29-1-3-1

• Jurisdiction: Indiana
• Art. 1: PROBATE CODE
• Ch. 3: Taking Against a Will and Rights of Pretermitted Heirs

Text

(a) When a married individual dies testate as to
any part of the individual's estate, the surviving spouse is entitled to
take against the will under the limitations and conditions stated in this
chapter. The surviving spouse, upon electing to take against the will,
is entitled to one-half (1/2) of the net personal and real estate of the
testator. However, if the surviving spouse is a second or other
subsequent spouse who did not at any time have children by the
decedent and the decedent left surviving a child or children or the
descendants of a child or children by a previous spouse, the surviving
second or subsequent childless spouse shall upon such election take
one-third (1/3) of the net personal estate of the testator plus an amount
equal to twenty-five percent (25%) of the remainder of:
(1) the fair market value as of the date of death of the real
property of the testator; minus
(2) the value of the liens and encumbrances on the real property
of the testator.
In determining the net estate of a deceased spouse for the purpose of
computing the amount due the surviving spouse electing to take against
the will, the court shall consider only such property as would have
passed under the laws of descent and distribution.
(b) When the value of the property given the surviving spouse under
the will is less than the amount the surviving spouse would receive by
electing to take against the will, the surviving spouse may elect to
retain any or all specific bequests or devises given to the surviving
spouse in the will at their fair market value as of the time of the
decedent's death and receive the balance due in cash or property.
(c) Except as provided in subsection (b), in electing to take against
the will, the surviving spouse is deemed to renounce all rights and
interest of every kind and character in the personal and real property of
the deceased spouse, and to accept the elected award in lieu thereof.
(d) When a surviving spouse elects to take against the will, the
surviving spouse shall be deemed to take by descent, as a modified
share, the part of the net estate as does not come to the surviving
spouse by the terms of the will. Where by virtue of an election pursuant
to this chapter it is determined that the surviving spouse has renounced
the surviving spouse's rights in any devise, either in trust or otherwise,
the will shall be construed with respect to the property so devised to the
surviving spouse as if the surviving spouse had predeceased 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.