Does a purchase made before marriage always become part of an estate?

My father was remarried a few years ago. He has grown children from his first marriage. He recently passed away leaving everything in his name only. An estate has been opened but his former wife continues to claim that things were hers or he had given them to her as a gift. We are headed to court soon, what can she claim and receive? He did not have a will, but his wishes were clearly known.

Asked on June 8, 2009 under Estate Planning, Indiana

Answers:

L.M., Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

First, the notion of separate property is less important in Indiana than in other states.  However, if money, for example, was brought into a marriage in a seperate account, and never changed to a joint account, it has been held to be seperate property.  If it is comingled with marital property, it becomes part of the marital property.  As for "things," that is more difficult.  But here is what you need to know since your father had no will.  In every state, if there is no will, real and personal property is distributed to the heirs according to the state's intestate succession laws.  In Indiana, here is the law after all debts including taxes have been paid:  (Note, "issue" refers to grandchildren)

 

If an individual dies without a Will, Indiana law provides for the following distribution of real and personal property belonging to that person:

1. One-third (1/3) of the net estate to the surviving spouse if he/she is survived by two or more children; or

2. One-third (1/3) of the net estate to the surviving spouse if he/she is survived by one or more children and the descendants of one or more deceased children; or

3. One-third (1/3) of the net estate to the surviving spouse if he/she is survived by the issue of two or more deceased children; or

4. One-half (1/2) of the net estate to the surviving spouse if he/she is survived by one child or by the issue of one deceased child; or

5. Three-fourths (3/4) of the net estate to the surviving spouse if he/she has no surviving issue, but he/she is survived by one or more parents; or

6. All of the net estate if there is no surviving issue or parent.

7. 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 him a child or children or the descendants of a child or children by a previous spouse, such surviving second or subsequent childless spouse shall take only a life estate in one-third ( 1/3 ) of the lands of the deceased spouse, and the fee shall, at the decedent's death, vest at once in such child or children, or the descendants of such as may be dead, subject only to the life estate of the surviving spouse. Such second or subsequent childless spouse shall, however, receive the same share of the personal property of the decedent as is provided in subsection (b) with respect to surviving spouses generally.

8. The share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, shall descend and be distributed as follows:

(1) To the issue of the intestate, if they are all of the same degree of kinship to the intestate, they shall take equally; or if of unequal degree, then those of more remote degrees shall take by representation.

(2) If there is a surviving spouse but no surviving issue of the intestate, then to the surviving parents of the intestate.

(3) If there is no surviving spouse or issue of the intestate, then to the surviving parents, brothers, and sisters, and the issue of deceased brothers and sisters of the intestate. Each living parent of the intestate shall be treated as of the same degree as a brother or sister and shall be entitled to the same share as a brother or sister. However, the share of each parent shall be not less than one-fourth (1/4) of such net estate. Issue of deceased brothers and sisters shall take by representation.

(4) If there is no surviving parent or brother or sister of the intestate, then to the issue of brothers and sisters. If such distributees are all in the same degree of kinship to the intestate, they shall take equally or, if of unequal degree, then those of more remote degrees shall take by representation.

(5) If there is no surviving issue, or parent of the intestate, or issue of a parent, then to the surviving grandparents of the intestate equally.

(6) If there is no surviving issue, or parent, or issue of a parent, or grandparent of the intestate, then the estate of the decedent shall be divided into that number of shares equal to the sum of:

(A) the number of brothers and sisters of the decedent's parents surviving the decedent; plus
(B) the number of deceased brothers and sisters of the decedent's parents leaving issue surviving both them and the decedent; and one (1) of the shares shall pass to each of the brothers and sisters of the decedent's parents, or their respective issue, per stirpes.

(7) If interests in real estate go to a husband and wife under this subsection, the aggregate interests so descending shall be owned by them as tenants by the entireties. Interests in personal property so descending shall be owned as tenants in common.

(8) If there is no person mentioned in subdivisions (1) through (7), then to the State of Indiana.

9. If the surviving spouse is a second (or subsequent) spouse, generally, he/she takes only a life estate in one-third (1/3) of the real estate of the deceased. The real estate, upon the death of the second or subsequent spouse, then vests in the surviving children by the first marriage. The second or subsequent spouse does, however, receive the same share of personal property as a first spouse.

 

For more information or further explanation of your rights under Indiana law, it would be prudent for you to talk to an estate attorney in your area.  Try www.attorneypages.com or your local bar association.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.