Spousal Elective Share Requirements in Indiana

At a glance

Requirements one by one

Governing law and system

Indiana is a will-election state. Under § 29-1-3-1(a), the court computes the share using only property that “would have passed under the laws of descent and distribution.” Chapter 29-1-3 does not create an augmented estate that adds specified nonprobate transfers.

Eligible spouse and who may elect

The right belongs to the surviving spouse. Indiana also has conduct-based forfeitures outside the election chapter: a spouse who left the other spouse and was living in adultery at death takes no part of the deceased spouse's estate or trust, and a spouse who abandoned the other without just cause likewise takes no part.

The election is normally personal. An attorney in fact may elect only when the power of attorney carries the cross-referenced general estate authority. For a protected person, the court may order the guardian of the spouse's estate to elect. After the spouse dies, the only statutory exception is an election by the Office of Medicaid Policy and Planning to recover benefits paid for the deceased spouse, capped at those benefits.

Share amount and marriage length

The ordinary share is one-half of the net personal and real estate. Indiana does not scale that fraction by the number of years married.

The special reduced formula applies only when all three conditions exist: the survivor is a second or later spouse, never had children with the decedent, and the decedent left children or descendants of children by a previous spouse. The share is then one-third of net personal property plus 25% of the date-of-death fair market value of real property after liens and encumbrances.

For example, if that spouse faces $300,000 of net personal property and real property worth $400,000 with $80,000 of liens, the statutory starting amount is $180,000: one-third of $300,000 ($100,000) plus 25% of $320,000 ($80,000).

Estate base and nonprobate transfers

The controlling sentence is restrictive: the court “shall consider only such property as would have passed under the laws of descent and distribution.” The chapter does not list revocable trusts, survivorship property, POD/TOD accounts, beneficiary-designated benefits, the survivor's property, or recent gifts as additions to the base.

Deductions, exclusions, and valuation

Section 29-1-3-1 uses the phrase “net personal and real estate” but does not supply a separate elective-share deduction schedule. For the special later- spouse real-property component, it expressly uses fair market value at death minus liens and encumbrances. If the spouse keeps specific will gifts under subsection (b), those gifts are credited at their fair market value at death.

Deadline, extensions, and withdrawal

The ordinary deadline is three months after the order admitting the will to probate. If specified litigation is still pending when that period ends—over will validity, effect, construction, surviving issue, or another fact or law that affects the amount—the election remains open until 30 days after final determination.

There is no ordinary withdrawal window. Section 29-1-3-5 says an election, once made, is binding and may be changed only for causes that would justify equitable rescission of a deed.

Filing, service, and court procedure

The election must be written, signed, acknowledged, and filed with the court clerk. The statute provides a short model form. The clerk records the election in the will record and makes cross-references between the will and election.

Service is also assigned to the clerk. The clerk sends the election to the personal representative and the representative's attorney of record through Indiana's court e-filing system or by prepaid first-class mail to the addresses shown in the probate petition.

Waiver and agreement requirements

The right may be waived before or after marriage by a signed written contract or agreement after full disclosure of the nature and extent of the right and for fair consideration. For a premarital agreement, the promise of marriage is sufficient consideration absent fraud. Section 29-1-2-13 adds that a spouse's waiver normally includes the right to elect against the will unless the agreement provides otherwise.

Payment sources and recipient liability

If the value of the will property given to the spouse is less than the elective amount, the spouse may retain any or all specific bequests or devises at their date-of-death fair market value and receive the balance in cash or property. The chapter does not create an augmented-estate contribution procedure against specified nonprobate recipients.

Effect of election and other spousal rights

Except for gifts retained under subsection (b), the spouse renounces all rights and interests in the deceased spouse's real and personal property and accepts the elected award instead. The spouse takes the part not supplied by the will as a modified share by descent, and a renounced devise is construed as though the spouse predeceased the testator.

The separate surviving-spouse allowance is $25,000 and is not charged against the spouse's distributive share. Section 29-1-3-7 says taking under or consenting to the will does not waive that allowance unless the will clearly shows its provision was intended in lieu of the allowance.

What trips people up

• The three-month clock runs from the probate order, not death. Calendar the order admitting the will.
• The special share is not simply one-third. It combines one-third of net personal property with 25% of real value after liens.
• The election needs an acknowledgment. A signature or penalty-of-perjury statement alone does not satisfy the execution language in § 29-1-3-3.
• The clerk handles statutory service. The statute does not make the spouse serve every interested person.

Common questions

Can the spouse keep a particular gift in the will?

Yes, when the total value of the will property is below the elective amount. The spouse may retain any or all specific bequests or devises at date-of-death fair market value and receive the remaining balance in cash or property.

Can an attorney in fact make the election?

Yes, but only if the power of attorney has the general authority concerning estates referenced in § 29-1-3-4. The execution and acknowledgment of an agent- made election should be handled carefully because § 29-1-3-3's signing text expressly names the spouse and guardian.

Does making no election create a share if the will omitted the spouse?

No. Section 29-1-3-7 says omission alone does not create the against-the-will share; the spouse must make the statutory election. Without an election, the spouse receives favorable will provisions and any intestate share of property the will did not dispose of.

Statutes and sources

• Ind. Code § 29-1-3-1 — ordinary and special shares, property base, retained gifts, renunciation, modified descent, and predeceased-spouse effect. Official 2026 chapter PDF (accessed 2026-08-02).
• Ind. Code §§ 29-1-3-2 to -5 — deadline, litigation extension, acknowledgment, filing, clerk service, representative authority, Medicaid exception, and binding effect. Official 2026 chapter PDF (accessed 2026-08-02).
• Ind. Code §§ 29-1-3-6 to -7 — waiver safeguards and the consequence of not electing. Official 2026 chapter PDF (accessed 2026-08-02).
• Ind. Code §§ 29-1-2-13 to -15 — spouse waiver, adultery forfeiture, and abandonment forfeiture. Official 2026 chapter PDF (accessed 2026-08-02).
• Ind. Code § 29-1-4-1 — $25,000 surviving-spouse allowance and no charge against distributive share. Official 2026 chapter PDF (accessed 2026-08-02).