What rights does my stepfather have to my mother’s estate?

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What rights does my stepfather have to my mother’s estate?

My mother remarried 11 years ago. She has a Will leaving her estate to her 3 children. His name is not on the deed. Does he have any legal rights to her estate if she should pass?

Asked on May 13, 2012 under Estate Planning, Indiana

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

He has what is known as a right of election against the Will.  In Indiana it is listed under IC29-1-3 and states, in relevant part, the following:

"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. "

It may be a good idea to speak with an estate planner.  Good luck.


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