The death of a spouse is often marked by heightened emotions as you grieve your loss. If you learn that your spouse left you out of his/her Will, it can be even more difficult to manage those heightened emotions because you may also be concerned about your financial situation. That may lead you to wonder if you can challenge your spouse’s Will. The Indianapolis probate lawyers at Frank & Kraft discuss contesting your spouse’s Will in Indiana.
Probate Basics
When an individual passes away, the law requires the assets that make up the decedent’s estate to be accounted for and ultimately passed down to the intended beneficiaries or heirs of the estate. Before assets are transferred out of the estate, however, debts of the estate – including gift and estate taxes — must be paid. All of this occurs during the probate process. One of the first steps in the probate process, however, is the authentication of the decedent’s Will if one is submitted to the court. It is at this point that you should contest the Will if you decide to do so.
Can My Spouse Leave Me Out of His/Her Will?
As a general rule, a Testator can leave his/her assets to anyone and in any amount. As long as the Testator was of sound mind at the time the Will was executed, and was not unduly influenced by someone, a Testator is free to distribute his/her estate as he/she sees fit. There is, however, one exception to that general rule in many states, including Indiana. A Testator cannot completely disinherit a spouse. In Indiana, IC 29-1-3-0.1 governs a spouse’s right not to be disinherited, reading as follows:
Sec. 1. (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.
Taking Against the Will
In Indiana, a spouse’s right not to be disinherited is referred to as “taking against the Will.” A common misconception is that a Testator can get around the right to take against the Will by leaving something to his/her spouse in a Will. That is not the case in Indiana. Even if your spouse left you something in his/her Will, you still have the right to elect your spousal percentage under IC 29-1-3-0.1 If you recently lost your spouse and were left nothing (or only left a token bequest) under the terms of his/her Last Will and Testament, consult with an experienced probate attorney to discuss your option to take against the Will.
Contact Indianapolis Probate Lawyers
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about contesting a spouse’s Will, contact the experienced Indianapolis probate lawyers at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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