Under Indiana law, if a decedent dies without a will he or she is considered to have died intestate. If a decedent dies intestate, his or her surviving spouse receives what is known as an intestate share. Pursuant to Ind. Code § 29-1-2-1, the intestate share of the surviving spouse is as follows:
- At least one child: one-half of the net estate;
- No children but at least one of the decedent’s parents: three-fourths of the net estate;
- No children: the entire net estate.
The net estate is defined as the real and personal property of the deceased spouse less certain allowances and enforceable claims against the estate. These allowances include, for example, the spousal allowance discussed below.
The surviving spouse is entitled to take against the will an elective share equal to one-half of the net personal and real estate of the decedent. However, if the surviving spouse is a second or other subsequent spouse who did not at any time have children with the decedent and the decedent left a surviving child or children by a previous spouse, the surviving spouse may elect to take one-third of the net personal estate of the decedent and an amount equal to twenty-five percent (25%) of the remainder of:
- The fair market value as of the date of death of the real property of the testator; minus
- The value of the liens and encumbrances on the real property of the testator.
Ind. Code § 29-1-3-1(a).
The surviving spouse must file his or her written election with the Court must not be made later than three (3) months after the date of the order admitting the will to probate against which the election of the elective share is made. Ind. Code § 29-1-3-2(a).
Surviving Spouse Allowance
The surviving spouse of a decedent who was domiciled in Indiana at his or her death is entitled to an allowance of twenty-five thousand dollars ($25,000) from the decedent’s estate. This surviving spouse allowance may be claimed against the personal property of the estate or a residence of the estate, or a combination thereof.
Importantly, an allowance under this section is not chargeable against the distributive share of the surviving spouse. Ind. Code § 29-1-4-1.