What is the elective share of the surviving spouse in Indiana?

Full question:

I am my husband's second wife. After my husband’s death, his previous wife has come to claim her share in his property. I wanna know how much share do I get to claim even if my husband’s previous wife and child claim their share in my husband's property.

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Indiana

Answer:

In this case as your husband’s previous wife is also present and she’s got a child with your husband then you get to claim one-third of the net personal estate of the testator and amount equal to twenty-five percent (25%) of the remainder:
If you were your husband first wife and the only surviving spouse then you would have been entitled to one-half (1/2) of the net personal and real estate of your husband’s property.
For more information please have a look at the law below:
Burns Ind. Code Ann. § 29-1-3-1
Election to take against will of deceased spouse.
 
29-1-3-1 Limitations and conditions
 
(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.
Ind. Code Ann. § 29-1-3-2
29-1-3-2 Time
 
Sec. 2. (a) Except as provided in subsection (b), the election by a surviving spouse to take the share hereinbefore provided must be made not later than three (3) months after the date of the order admitting to probate the will against which the election is made.
(b) If, at the expiration of such period for making the election, litigation is pending to test the validity or determine the effect or construction of the will or to determine the existence of issue surviving the deceased, or to determine any other matter of law or fact which would affect the amount of the share to be received by the surviving spouse, the right of such surviving spouse to make an election shall not be barred until the expiration of thirty (30) days after the final determination of the litigation.
 
Ind. Code Ann. § 29-1-4-1
29-1-4-1 Surviving spouse and family allowances
 
Sec. 1. (a) The surviving spouse of a decedent who was domiciled in Indiana at the decedent's death is entitled from the estate to an allowance of twenty-five thousand dollars ($25,000). If there is no surviving spouse, the decedent's children who are under eighteen (18) years of age at the time of the decedent's death are entitled to the same allowance to be divided equally among them.
(b) The allowance under subsection (a) may be claimed against:
(1) the personal property of the decedent's estate;
(2) the real property that is part of the decedent's estate; or
(3) a combination of personal property under subdivision (1) and real property under subdivision (2).
(c) Not later than ninety (90) days after the order commencing the estate administration, an individual entitled to the allowance may file with the court an election specifying whether the allowance is being claimed under subsection (b) against the personal property of the estate or the real property that is part of the estate, or a combination of both. An interested party may file an objection to the manner in which the allowance is being claimed not later than thirty (30) days after the date the election is filed with the court. The court shall rule on the objection after notice and a hearing. If an election is not filed within ninety (90) days after the order commencing the estate administration, the allowance must be satisfied according to the following order of preference:
(1) From the intangible personal property of the estate.
(2) From the tangible personal property of the estate.
(3) From the real property that is part of the estate.
(d) If the personal property of the estate is less than twenty-five thousand dollars ($25,000) in value, the spouse or decedent's children who are under eighteen (18) years of age at the time of the decedent's death, as the case may be, are entitled to any real estate of the estate to the extent necessary to make up the difference between the value of the personal property and twenty-five thousand dollars ($25,000). The amount of that difference is a lien on the real estate. However, no real estate may be sold to satisfy the survivor's allowance unless the sale is approved:
(1) in an agreement signed by all interested persons; or
(2) by court order following notice to all interested persons.
(e) An allowance under this section is not chargeable against the distributive shares of either the surviving spouse or the children.
(f) For purposes of this section, the value of the real property that is part of a decedent's estate must be determined as of the date of the decedent's death.
 
Ind. Code Ann. § 29-1-3-7
29-1-3-7 Failure to elect; intestate succession
 
Sec. 7. When a surviving spouse makes no election to take against the will, he shall receive the benefit of all provisions in his favor in the will, if any, and shall share as heir, in accordance with IC 29-1-2-1, in any estate undisposed of by the will. The surviving spouse is not entitled to take any share against the will by virtue of the fact that the testator made no provisions for him therein, except as he shall elect pursuant to IC 29-1. By taking under the will or consenting thereto, he does not waive his right to the allowance, unless it clearly appears from the will that the provision therein made for him was intended to be in lieu of that right.
 
Ind. Code Ann. § 29-1-3-4
29-1-3-4 Personal right; election by attorney-in-fact or guardian; spousal election exercised subsequent to spouse's death
 
Sec. 4. (a) Except as provided in subsection (b), the right of election of the surviving spouse is personal to the spouse. It is not transferable and cannot be exercised subsequent to the spouse's death. A person with a valid power of attorney for the surviving spouse may elect for the spouse if the power of attorney has general authority with respect to estates as provided in IC 30-5-5-15(a)(4). If the surviving spouse is a protected person, the court may order the guardian of the spouse's estate to elect for the spouse.
(b) The spousal election may be exercised subsequent to the spouse's death under the following circumstances:
(1) The surviving spouse died before the election could be made.
(2) The election is being made to recover Medicaid benefits that were paid on behalf of the deceased surviving spouse.
 
The office of Medicaid policy and planning may exercise the right of election under this subsection. The spousal election is only enforceable up to the amount of Medicaid benefits that were received and the amount may only be distributed to the office of Medicaid policy and planning.