Limitations and conditions
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 fair market value
as of the date of death of the lands 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.
Last modified: May 27, 2006