Indiana Code

Ind. Code § 29-1-3-1 (2025)

Limitations and conditions

✓ 2025 Indiana Code: the 2026 session is not included
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     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.

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.

 

Notes of Decisions
Cited in 23 cases (5 in the last 5 years), 1980–2025 · leading case: Montgomery v. Supervised Admin. of the Est. of Montgomery, 677 N.E.2d 571 (Ind. Ct. App. 1997).
Montgomery v. Supervised Admin. of the Est. of Montgomery, 677 N.E.2d 571 (Ind. Ct. App. 1997). · cites it 22× “3 ISSUE Montgomery offers four issues on appeal, all of which culminate in the single issue of whether the trial court erred in failing to grant Montgomery’s petition for partial distribution on the basis that his life estate interest in one-third of the real property of the…”
Walker v. Lawson, 526 N.E.2d 968 (Ind. 1988). · cites it 8× “However, following probation of the will, Lawson prepared a document by which Thomas elected to take against the will and receive his statutory share under Ind. Code § 29-1-3-1 . As we view the case, at the time Sybille came to Lawson, she was aware of the fact that she had…”
In the Matter of the Revocable Trust Agreement created by the Settlor, Anil Kumar Sarkar Dipa Sarkar v. Anuradha (\Mili\") Sarkar Naugle", 84 N.E.3d 666 (Ind. Ct. App. 2017). · cites it 6× “Instead,- the trial court determined that allowing Dipa to “now assertf ] a claim for-spousal rights pursuant to IC § 29-1-3-1 ... is unduly prejudicial..”
Schmidt v. Schmidt, 812 N.E.2d 1074 (Ind. Ct. App. 2004). · cites it 4× “See Ind.Code § 29-1-3-1 (2003). If the parties' marriage ends in divorce, they would no longer be a "spouse" who has a right to take against the will of the decedent; therefore, they would not need a provision that waives their right as a surviving spouse to take against the…”
Taylor v. Taylor, 643 N.E.2d 893 (Ind. 1994). · cites it 6× “Ind. Code § 29-1-3-1 (a) (Burns 1989). (a) The right of election of a surviving spouse given under [Indiana Code § 29-1-3-1] of this chapter may be waived before or after marriage by a written contract, [or] agreement signed by the party waiving the right of election, after full…”
Dunnick v. Indiana Dep't of State Revenue, 855 N.E.2d 1087 (Ind. T.C. 2006). · cites it 7× “In turn, Indiana Code § 29-1-3-1 provides that the surviving spouse of an individual who dies testate may elect to take against the will of the decedent if the surviving spouse is not satisfied with the provision made for him or her in the will.”
Dunnewind v. Cook, 697 N.E.2d 485 (Ind. Ct. App. 1998). · cites it 4× “served no purpose other than the avoidance of Husband’s statutory share. R. at 162-63. In an election against a will the surviving spouse has the right to take a statutory share of the deceased spouse’s real and personal property.”
Est. of Calcutt v. Calcutt, 576 N.E.2d 1288 (Ind. Ct. App. 1991). · cites it 4× “§ 29-1-3-1 precludes him from also receiving the survivor's allowance under LC.”
Weitzman v. Fort Wayne Nat'l Bank, 724 N.E.2d 1120 (Ind. Ct. App. 2000). · cites it 2× “Effect of the Trust Under Ind.Code § 29-1-3-1, the surviving spouse of an individual who dies testate may elect to take against the will if the surviving spouse is not satisfied with the provision made for him or her in the will.”
Indiana Dep't of State Revenue v. Est. of Pickerill, 855 N.E.2d 1082 (Ind. T.C. 2006). · cites it 2× “In turn, Indiana Code § 29-1-3-1 provides that the surviving spouse of an individual who dies testate may elect to take against the will of the decedent if the surviving spouse is not satisfied with the provision made for him or her in the will.”
Est. of Gillilan v. Est. of Gillilan, 406 N.E.2d 981 (Ind. Ct. App. 1980). · cites it 2× “” On October 8, 1975 Mae filed an Election to take against Charles’ will pursuant to Ind.Code 29-1-3-1,3. 4 On October 27,1975 *986 Mae died intestate and John L.”
Citizens Nat'l Bank of Whitley Cnty. v. Stasell, 415 N.E.2d 150 (Ind. Ct. App. 1981). · cites it 2× “Neither did Charles Martin, as surviving spouse, “Take Against the Will,” Ind.Code §§ 29-1-3-1 to 8 (1976 & Supp.1980), as provided under Indiana probate law.”
Ind. Code § 29-1-3-1(a): 4 cases
In the Matter of the Revocable Trust Agreement created by the Settlor, Anil Kumar Sarkar Dipa Sarkar v. Anuradha (\Mili\") Sarkar Naugle", 84 N.E.3d 666 (Ind. Ct. App. 2017). “Instead,- the trial court determined that allowing Dipa to “now assertf ] a claim for-spousal rights pursuant to IC § 29-1-3-1 ... is unduly prejudicial..”
Est. of Calcutt v. Calcutt, 576 N.E.2d 1288 (Ind. Ct. App. 1991). “§ 29-1-3-1 precludes him from also receiving the survivor's allowance under LC.”
Dunnick v. Indiana Dep't of State Revenue, 855 N.E.2d 1087 (Ind. T.C. 2006). “In turn, Indiana Code § 29-1-3-1 provides that the surviving spouse of an individual who dies testate may elect to take against the will of the decedent if the surviving spouse is not satisfied with the provision made for him or her in the will.”
Dunnewind v. Cook, No. 49A05-9710-CV-424 (Ind. July 10, 1998).
Ind. Code § 29-1-3-1(d): 1 case
Est. of Calcutt v. Calcutt, 576 N.E.2d 1288 (Ind. Ct. App. 1991). “§ 29-1-3-1 precludes him from also receiving the survivor's allowance under LC.”
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