Introduced Version
SENATE BILL No. 544
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 6-4.1; IC 29-1; IC 31-11.5; IC 32-17.
Synopsis: Probate and property matters. Exempts property interests
transferred to a surviving domestic partner from the inheritance tax
imposed as a result of the other domestic partner's death. Provides that
a surviving domestic partner is entitled to the same status as a
surviving spouse in the probate code. Requires the clerk of the circuit
court to establish a domestic partnership registry. Authorizes a couple
that meets certain requirements to register their relationship as a
domestic partnership. Enables domestic partnerships to own property
as tenants in the entireties. Specifies that certain personal property
becomes the sole property of a surviving domestic partner upon the
death of the other domestic partner.
Effective: July 1, 2009.
Taylor
January 15, 2009, read first time and referred to Committee on Judiciary.
Introduced
First Regular Session 116th General Assembly (2009)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
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Additions: Whenever a new statutory provision is being enacted (or a new constitutional
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NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
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this style type reconciles conflicts
between statutes enacted by the 2008 Regular Session of the General Assembly.
SENATE BILL No. 544
A BILL FOR AN ACT to amend the Indiana Code concerning
probate.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 6-4.1-1-3; (09)IN0544.1.1. -->
SECTION 1. IC 6-4.1-1-3, AS AMENDED BY P.L.238-2005,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 3. (a) "Class A transferee" means a transferee who
is a:
(1) lineal ancestor of the transferor;
(2) lineal descendant of the transferor;
(3) stepchild of the transferor, whether or not the stepchild is
adopted by the transferor; or
(4) lineal descendant of a stepchild of the transferor, whether or
not the stepchild is adopted by the transferor.
(b) "Class B transferee" means a transferee who is a:
(1) brother or sister of the transferor;
(2) descendant of a brother or sister of the transferor; or
(3) spouse, widow, or widower of a child of the transferor.
(c) "Class C transferee" means a transferee, except a surviving
spouse or domestic partner, who is neither a Class A nor a Class B
transferee.
(d) For purposes of this section, a legally adopted child is to be
treated as if the child were the natural child of the child's adopting
parent if the adoption occurred before the individual was totally
emancipated. However, an individual adopted after being totally
emancipated shall be treated as the natural child of the adopting parent
if the adoption was finalized before July 1, 2004.
(e) For purposes of this section, if a relationship of loco parentis has
existed for at least ten (10) years and if the relationship began before
the child's fifteenth birthday, the child is to be considered the natural
child of the loco parentis parent.
(f) As used in this section, "stepchild" means a child of the
transferor's surviving, deceased, or former spouse who is not a child of
the transferor.
SOURCE: IC 6-4.1-1-3.5; (09)IN0544.1.2. -->
SECTION 2. IC 6-4.1-1-3.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2009]: Sec. 3.5. "Domestic partner" has the meaning set forth in
IC 31-11.5-1-2.
SOURCE: IC 6-4.1-1-16; (09)IN0544.1.3. -->
SECTION 3. IC 6-4.1-1-16 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2009]: Sec. 16. The:
(1) rights and privileges conferred upon a domestic partner
under this article; and
(2) exemption granted to a domestic partner under
IC 6-4.1-3-7(a);
apply to the estate of an individual who dies after June 30, 2009.
SOURCE: IC 6-4.1-3-7; (09)IN0544.1.4. -->
SECTION 4. IC 6-4.1-3-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 7. (a) Each property
interest which a decedent transfers to
his the decedent's surviving
spouse
or domestic partner is exempt from the inheritance tax
imposed as a result of
his the decedent's death.
(b) For the purpose of subsection (a), "property interest which a
decedent transfers to
his the decedent's surviving spouse" includes a
property interest from which the surviving spouse is entitled for life to
income or payments and which otherwise qualifies for deduction from
the gross estate of the decedent under Section 2056(b)(5) or 2056(b)(6)
of the Internal Revenue Code.
(c) The personal representative of the decedent's estate or the trustee
or transferee of property transferred by the decedent may, for the
purpose of the exemption established by subsection (a), elect to treat
property passing from the decedent in which the surviving spouse has
a qualifying income interest for life as a property interest which a
decedent transfers to
his the decedent's surviving spouse. For purposes
of this section, "qualifying income interest for life" means a qualifying
income interest for life (as defined in Section 2056(b)(7) of the Internal
Revenue Code).
(d) The election referred to in subsection (c) shall be made in
writing and shall be attached to the inheritance tax return, if one is
required to be filed. The election, once made, is irrevocable.
SOURCE: IC 6-4.1-3-13; (09)IN0544.1.5. -->
SECTION 5. IC 6-4.1-3-13 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 13. (a) For purposes of
this section, the term "property subject to the inheritance tax" means
property transferred by a decedent under a taxable transfer.
(b) The following items, and no others, may be deducted from the
value of property interests transferred by a resident decedent under his
will, under the laws of intestate succession, or under a trust:
(1) the decedent's debts which are lawful claims against his
resident estate;
(2) taxes on the decedent's real property which is located in this
state and subject to the inheritance tax, if the real property taxes
were a lien at the time of the decedent's death;
(3) taxes on decedent's personal property which is located in this
state and subject to the inheritance tax, if the personal property
taxes are a personal obligation of the decedent or a lien against
the property and if the taxes were unpaid at the time of the
decedent's death;
(4) taxes imposed on the decedent's income to date of death, if the
taxes were unpaid at the time of his death;
(5) inheritance, estate, or transfer taxes, other than federal estate
taxes, imposed by other jurisdictions with respect to intangible
personal property which is subject to the inheritance tax;
(6) mortgages or special assessments which, at the time of
decedent's death, were a lien on any of decedent's real property
which is located in this state and subject to the inheritance tax;
(7) decedent's funeral expenses;
(8) amounts, not to exceed one thousand dollars ($1,000), paid for
a memorial for the decedent;
(9) expenses incurred in administering property subject to the
inheritance tax, including but not limited to reasonable attorney
fees, personal representative fees, and trustee fees;
(10) the amount of any allowance provided to the resident
decedent's children by IC 29-1-4-1; and
(11) the value of any property actually received by a resident
decedent's surviving spouse
or domestic partner in satisfaction
of the allowance provided by IC 29-1-4-1, regardless of whether
or not a claim for that allowance has been filed under IC 29-1-14.
(c) The amounts which are deductible under subsection (b)(6) of
this section are deductible only from the value of the real property
encumbered by the mortgage or special assessment.
SOURCE: IC 6-4.1-8-4; (09)IN0544.1.6. -->
SECTION 6. IC 6-4.1-8-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4. (a) A person who has
possession of or control over personal property held jointly by a
resident decedent and another person may not transfer the property to
the surviving joint tenant, unless:
(1) the surviving joint tenant is the decedent's surviving spouse
or
domestic partner; or
(2) the property is money held in a joint checking account;
without the written consent of the department of state revenue or the
county assessor of the county in which the resident decedent was
domiciled at the time of the decedent's death.
(b) Except as provided in subsection (c), a person who has
possession of or control over personal property held in a trust that is
subject to the Indiana inheritance or estate tax at the time of a resident
decedent's death may not transfer the property to a beneficiary or any
other person, unless the beneficiary or other person is the decedent's
surviving spouse
or domestic partner, without the written consent of
the department of state revenue or the county assessor of the county in
which the resident decedent was domiciled at the time of the decedent's
death.
(c) A person who has possession of or control over personal
property held in trust may transfer the property without the written
consent of the department of state revenue or the county assessor of the
county in which the resident decedent was domiciled at the time of the
decedent's death under the following conditions:
(1) The transferee is domiciled in Indiana.
(2) The transferee completes a sworn affidavit on a form
prescribed by the department of state revenue that states:
(A) the transfer of the personal property is not subject to
Indiana inheritance or estate tax; and
(B) the reasons the transfer is not subject to tax.
(3) A copy of the affidavit required under subdivision (2) is
immediately filed with the department of state revenue.
(d) A person who has possession of or control over a resident
decedent's personal property (except proceeds payable under a life
insurance policy) may not transfer the property to any other person,
unless:
(1) the other person is the decedent's surviving spouse
or
domestic partner; or
(2) the property is money held in a checking account;
without the written consent of the department of state revenue or the
county assessor of the county in which the resident decedent was
domiciled at the time of the decedent's death.
(e) The department of state revenue or the appropriate county
assessor may consent to a transfer if the department or the county
assessor believes that the transfer will not jeopardize the collection of
inheritance tax.
(f) The department of state revenue shall send a copy of any consent
to transfer that it issues under this section to the county assessor of the
county in which the resident decedent was domiciled at the time of the
decedent's death.
SOURCE: IC 6-4.1-8-4.6; (09)IN0544.1.7. -->
SECTION 7. IC 6-4.1-8-4.6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4.6. A person who has
possession of or control over money held in a checking account in
which a resident decedent had a legal interest shall notify the
department or the county assessor of the county in which the resident
decedent was domiciled at the time of death, when money is transferred
from the account to a person, other than the resident decedent's
surviving spouse or domestic partner.
SOURCE: IC 29-1-1-3; (09)IN0544.1.8. -->
SECTION 8. IC 29-1-1-3 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 3. (a) The following definitions
apply throughout this article, unless otherwise apparent from the
context:
(1) "Child" includes an adopted child but does not include a
grandchild or other more remote descendants, nor, except as
provided in
IC 29-1-2-5, IC 29-1-2-7, a child born out of
wedlock.
(2) "Claims" includes liabilities of a decedent which survive,
whether arising in contract or in tort or otherwise, funeral
expenses, the expense of a tombstone, expenses of administration,
and all taxes imposed by reason of the person's death. However,
for purposes of IC 29-1-2-1 and IC 29-1-3-1, the term does not
include taxes imposed by reason of the person's death.
(3) "Court" means the court having probate jurisdiction.
(4) "Decedent" means one who dies testate or intestate.
(5) "Devise" or "legacy", when used as a noun, means a
testamentary disposition of either real or personal property or
both.
(6) "Devise", when used as a verb, means to dispose of either real
or personal property or both by will.
(7) "Devisee" includes legatee, and "legatee" includes devisee.
(8) "Distributee" denotes those persons who are entitled to the
real and personal property of a decedent under a will, under the
statutes of intestate succession, or under IC 29-1-4-1.
(9) "Domestic partner" has the meaning set forth in
IC 31-11.5-1-2.
(10) "Domestic partnership" means a domestic partnership
registered under IC 31-11.5-2.
(9) (11) "Estate" denotes the real and personal property of the
decedent or protected person, as from time to time changed in
form by sale, reinvestment, or otherwise, and augmented by any
accretions and additions thereto and substitutions therefor and
diminished by any decreases and distributions therefrom.
(10) (12) "Fiduciary" includes a:
(A) personal representative;
(B) guardian;
(C) conservator;
(D) trustee; and
(E) person designated in a protective order to act on behalf of
a protected person.
(11) (13) "Heirs" denotes those persons, including the surviving
spouse
or domestic partner, who are entitled under the statutes
of intestate succession to the real and personal property of a
decedent on the decedent's death intestate, unless otherwise
defined or limited by the will.
(12) (14) "Incapacitated" has the meaning set forth in
IC 29-3-1-7.5.
(13) (15) "Interested persons" means heirs, devisees, spouses
or
domestic partners, creditors, or any others having a property
right in or claim against the estate of a decedent being
administered. This meaning may vary at different stages and
different parts of a proceeding and must be determined according
to the particular purpose and matter involved.
(14) (16) "Issue" of a person, when used to refer to persons who
take by intestate succession, includes all lawful lineal descendants
except those who are lineal descendants of living lineal
descendants of the intestate.
(15) (17) "Lease" includes an oil and gas lease or other mineral
lease.
(16) (18) "Letters" includes letters testamentary, letters of
administration, and letters of guardianship.
(17) (19) "Minor" or "minor child" or "minority" refers to any
person under the age of eighteen (18) years.
(18) (20) "Mortgage" includes deed of trust, vendor's lien, and
chattel mortgage.
(19) (21) "Net estate" refers to the real and personal property of
a decedent less the allowances provided under IC 29-1-4-1 and
enforceable claims against the estate.
(20) (22) "Person" includes natural persons and corporations.
(21) (23) "Personal property" includes interests in goods, money,
choses in action, evidences of debt, and chattels real.
(22) (24) "Personal representative" includes executor,
administrator, administrator with the will annexed, administrator
de bonis non, and special administrator.
(23) (25) "Property" includes both real and personal property.
(24) (26) "Protected person" has the meaning set forth in
IC 29-3-1-13.
(25) (27) "Real property" includes estates and interests in land,
corporeal or incorporeal, legal or equitable, other than chattels
real.
(26) (28) "Will" includes all wills, testaments, and codicils. The
term also includes a testamentary instrument which merely
appoints an executor or revokes or revives another will.
(b) The following rules of construction apply throughout this article
unless otherwise apparent from the context:
(1) The singular number includes the plural and the plural number
includes the singular.
(2) The masculine gender includes the feminine and neuter.
SOURCE: IC 29-1-1-6; (09)IN0544.1.9. -->
SECTION 9. IC 29-1-1-6 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 6. When any judge or
his the
judge's spouse
or domestic partner shall be related within the third
degree of consanguinity, according to the civil law, to any of the parties
or their attorneys, shall have drawn the will of the decedent, or shall be
interested or have been counsel in any probate proceeding or any
matter therein, the same shall be grounds for disqualifying such judge
from acting in a controverted matter with respect to which his
disqualification exists. When grounds for disqualification exist, the
judge may refuse to act as judge therein; or, upon filing of a petition to
disqualify such judge, stating the grounds therefor, by any person
interested in the particular matter with respect to which his
disqualification exists, the judge must not act therein. The grounds for
disqualification stated herein are enumerated as additional grounds,
and not in limitation of applicable grounds for disqualification
provided by statute or by Supreme Court rule with respect to trial
judges generally.
SOURCE: IC 29-1-1-25; (09)IN0544.1.10. -->
SECTION 10. IC 29-1-1-25 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2009]: Sec. 25. Rights and privileges granted to a surviving
domestic partner under this article apply to the estate of an
individual who dies after June 30, 2009.
SOURCE: IC 29-1-2-1; (09)IN0544.1.11. -->
SECTION 11. IC 29-1-2-1, AS AMENDED BY P.L.101-2008,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 1. (a) The estate of a person dying intestate shall
descend and be distributed as provided in this section.
(b) Except as otherwise provided in subsection (c), the surviving
spouse
or domestic partner shall receive the following share:
(1) One-half (1/2) of the net estate if the intestate is survived by
at least one (1) child or by the issue of at least one (1) deceased
child.
(2) Three-fourths (3/4) of the net estate, if there is no surviving
issue, but the intestate is survived by one (1) or both of the
intestate's parents.
(3) All of the net estate, if there is no surviving issue or parent.
(c) If the surviving spouse
or domestic partner is a second or other
subsequent spouse
or domestic partner who did not at any time have
children by the decedent, and the decedent left surviving the decedent
a child or children or the descendants of a child or children by a
previous spouse
or domestic partner, the surviving second or
subsequent childless spouse
or domestic partner shall take only 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 deceased spouse
or domestic partner; minus
(2) the value of the liens and encumbrances on the real property
of the deceased spouse
or domestic partner.
The fee shall, at the decedent's death, vest at once in the decedent's
surviving child or children, or the descendants of the decedent's child
or children who may be dead. A second or subsequent childless spouse
or domestic partner described in this subsection shall, however,
receive the same share of the personal property of the decedent as is
provided in subsection (b) with respect to surviving spouses
or
domestic partners generally.
(d) The share of the net estate not distributable to the surviving
spouse
or domestic partner, or the entire net estate if there is no
surviving spouse
or domestic partner, 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) Except as provided in subsection (e), if there is a surviving
spouse or domestic partner but no surviving issue of the
intestate, then to the surviving parents of the intestate.
(3) Except as provided in subsection (e), if there is no surviving
spouse, domestic partner, 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 the decedent's 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 the
distributees described in this subdivision 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 or a
domestic partnership 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.
(e) A parent may not receive an intestate share of the estate of the
parent's minor or adult child if
(1) the parent was convicted of causing
the death of the other parent by:
(A) (1) murder (IC 35-42-1-1);
(B) (2) voluntary manslaughter (IC 35-42-1-3);
(C) (3) another criminal act, if the death does not result from the
operation of a vehicle; or
(D) (4) a crime in any other jurisdiction in which the elements of
the crime are substantially similar to the elements of a crime
listed in
clauses (A) subdivisions (1) through
(C); and (3).
(2) the victim of the crime is the other parent of the child.
If a parent is disqualified from receiving an intestate share under this
subsection, the estate of the deceased child shall be distributed as
though the parent had predeceased the child.
(f) As used in this subsection, "qualified relationship" means a
marriage or domestic partnership. For purposes of determining
whether subsection (c) applies in determining the amount that a
surviving spouse or domestic partner is entitled to receive from the
decedent's estate under this section, a surviving spouse or domestic
partner is considered a second or subsequent surviving spouse or
domestic partner if the decedent had been in one (1) or more
qualified relationships before:
(1) marrying the surviving spouse; or
(2) registering a domestic partnership with the surviving
domestic partner.
SOURCE: IC 29-1-2-13; (09)IN0544.1.12. -->
SECTION 12. IC 29-1-2-13 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 13. (a) The intestate
share or other expectancy to which the spouse, domestic partner, or
any other heir is entitled may be waived at any time by a written
contract, agreement or waiver signed by the party waiving such share
or expectancy. The promise of marriage, in the absence of fraud, is
sufficient consideration in the case of an agreement made before
marriage. In all other cases such contract, an agreement or waiver is
binding upon the parties to the agreement if executed after a full
disclosure of the nature and extent of such right, and if the thing or
promise given to such party is a fair consideration under all the
circumstances.
(b) Except as otherwise provided in the agreement, a waiver
executed by the decedent's spouse or domestic partner is considered
a waiver of the right to elect to take against the decedent's will. The
written agreement may be filed in the same manner as is provided for
the filing of an election under IC 29-1-3-3.
SOURCE: IC 29-1-2-15; (09)IN0544.1.13. -->
SECTION 13. IC 29-1-2-15, AS AMENDED BY P.L.238-2005,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 15. If a person shall abandon his or her spouse or
domestic partner without just cause, he or she shall take no part of his
or her the estate or trust of the abandoned spouse or domestic
partner.
SOURCE: IC 29-1-3-1; (09)IN0544.1.14. -->
SECTION 14. IC 29-1-3-1, AS AMENDED BY P.L.61-2006,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 1. (a) When
a married an individual dies testate
as to any part of the individual's estate, the
individual's surviving
spouse
or domestic partner is entitled to take against the will under
the limitations and conditions stated in this chapter. The surviving
spouse
or domestic partner, 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
or domestic partner 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
or domestic partner, the surviving second or subsequent childless
spouse
or domestic partner 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 the decedent for the
purpose of computing the amount due the surviving spouse
or
domestic partner 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
or
domestic partner under the will is less than the amount the surviving
spouse
or domestic partner would receive by electing to take against
the will, the surviving spouse
or domestic partner may elect to retain
any or all specific bequests or devises given to the surviving spouse
or
domestic partner 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
or domestic partner is deemed to
renounce all rights and interest of every kind and character in the
personal and real property of the
deceased spouse, decedent, and to
accept the elected award in lieu thereof.
(d) When a surviving spouse or domestic partner elects to take
against the will, the surviving spouse or domestic partner 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 or domestic partner
by the terms of the will. Where by virtue of an election pursuant to this
chapter it is determined that the surviving spouse or domestic partner
has renounced the surviving spouse's or domestic partner'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 or domestic
partner as if the surviving spouse or domestic partner had
predeceased the testator.
(e) As used in this subsection, "qualified relationship" means a
marriage or domestic partnership. For purposes of determining the
amount that a surviving spouse or domestic partner is entitled to
receive from the testator's estate because of an election made
under subsection (a), a surviving spouse or domestic partner is
considered a second or subsequent surviving spouse or domestic
partner if the testator had been in one (1) or more qualified
relationships before:
(1) marrying the surviving spouse; or
(2) entering a domestic partnership with the surviving
domestic partner.
SOURCE: IC 29-1-3-2; (09)IN0544.1.15. -->
SECTION 15. IC 29-1-3-2, AS AMENDED BY P.L.238-2005,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 2. (a) Except as provided in subsection (b), the
election by a surviving spouse or domestic partner to take the share
hereinbefore provided must be made not later than three (3) months
after the date of the order admitting to probate the will against which
the election is made.
(b) If, at the expiration of such period for making the election,
litigation is pending to test the validity or determine the effect or
construction of the will or to determine the existence of issue surviving
the deceased, or to determine any other matter of law or fact which
would affect the amount of the share to be received by the surviving
spouse or domestic partner, the right of such surviving spouse or
domestic partner to make an election shall not be barred until the
expiration of thirty (30) days after the final determination of the
litigation.
SOURCE: IC 29-1-3-3; (09)IN0544.1.16. -->
SECTION 16. IC 29-1-3-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 3. (a) The election to
take the share hereinbefore provided shall be in writing, signed and
acknowledged by the surviving spouse or domestic partner or by the
guardian of his the estate of the surviving spouse or domestic
partner and shall be filed in the office of the clerk of the court. It may
be in the following form:
I, A.B., surviving wife (or husband or domestic partner) of C.D.,
late of the county of ____________ and state of _______, do hereby
elect to take my legal share in the estate of the said C.D. and I do
hereby renounce provisions in the will of the said C.D. inconsistent
herewith.
Signed,
(Signature)
(Acknowledgment)
(b) Said election shall be recorded by such clerk in the record of
wills, marginal reference being made from such record to the book and
page in which such will is recorded, and from the record of such will
to the book and page where such election is recorded.
(c) The clerk shall cause a copy of said election to be served upon
the personal representative and his attorney of record by United States
mail addressed to such persons at their respective addresses as shown
by the petition for probate of will and appointment of personal
representative.
SOURCE: IC 29-1-3-4; (09)IN0544.1.17. -->
SECTION 17. IC 29-1-3-4, AS AMENDED BY P.L.246-2005,
SECTION 213, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 4. (a) Except as provided in
subsection (b), the right of election of the surviving spouse
or
domestic partner is personal to the spouse
or domestic partner. It is
not transferable and cannot be exercised subsequent to the
spouse's
death
of the spouse or domestic partner. A person with a valid power
of attorney for the surviving spouse
or domestic partner may elect for
the spouse
or domestic partner if the power of attorney has general
authority with respect to estates as provided in IC 30-5-5-15(a)(4). If
the surviving spouse
or domestic partner is a protected person, the
court may order the guardian of the
spouse's estate
of the spouse or
domestic partner to elect for the spouse
or domestic partner.
(b) The
spousal right of election
belonging to a surviving spouse
or domestic partner may be exercised subsequent to the
spouse's
death
of the spouse or domestic partner under the following
circumstances:
(1) The surviving spouse
or domestic partner died before the
election could be made.
(2) The election is being made to recover Medicaid benefits that
were paid on behalf of the deceased surviving spouse
or domestic
partner.
The office of Medicaid policy and planning may exercise the right of
election under this subsection. The spousal election permitted by this
subsection is only enforceable up to the amount of Medicaid benefits
that were received and the amount may only be distributed to the office
of Medicaid policy and planning.
SOURCE: IC 29-1-3-5; (09)IN0544.1.18. -->
SECTION 18. IC 29-1-3-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 5. An election by or on
behalf of a surviving spouse or domestic partner to take the share
provided in section 1 of this chapter once made shall be binding and
shall not be subject to change except for such causes as would justify
an equitable decree for the recission of a deed.
SOURCE: IC 29-1-3-6; (09)IN0544.1.19. -->
SECTION 19. IC 29-1-3-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 6. (a) The right of
election of a surviving spouse or domestic partner given under
section 1 of this chapter may be waived before or after marriage by a
written contract, agreement signed by the party waiving the right of
election, after full disclosure of the nature and extent of such right, if
the thing or the promise given such party is a fair consideration under
all the circumstances.
(b) The promise of marriage, in the absence of fraud, is sufficient
consideration in the case of an agreement made before marriage. An
agreement waiving a right of election may be filed in the same manner
as provided for the filing of an election under section 3 of this chapter.
SOURCE: IC 29-1-3-7; (09)IN0544.1.20. -->
SECTION 20. IC 29-1-3-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 7. When a surviving
spouse or domestic partner makes no election to take against the will,
he the surviving spouse or domestic partner shall receive the benefit
of all provisions in his favor of the surviving spouse or domestic
partner in the will, if any, and shall share as heir, in accordance with
IC 29-1-2-1, in any estate undisposed of by the will. The surviving
spouse or domestic partner is not entitled to take any share against the
will by virtue of the fact that the testator made no provisions for him
the surviving spouse or domestic partner therein, except as he the
surviving spouse or domestic partner shall elect pursuant to IC 29-1.
By taking under the will or consenting thereto, he a surviving spouse
or domestic partner does not waive his the right to the allowance,
unless it clearly appears from the will that the provision therein made
for him the surviving spouse or domestic partner was intended to be
in lieu of that right.
SOURCE: IC 29-1-3-8; (09)IN0544.1.21. -->
SECTION 21. IC 29-1-3-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 8. (a) When a testator
fails to provide in his will for any of his the testator's children born or
adopted after the making of his the testator's last will, such child,
whether born before or after the testator's death, shall receive a share
in the estate of the testator equal in value to that which he the child
would have received if the testator had died intestate, unless it appears
from the will that such omission was intentional, or unless when the
will was executed the testator had one (1) or more children known to
him the testator to be living and devised substantially all his the
testator's estate to the spouse or domestic partner who survives him.
the testator.
(b) If, at the time of the making of his the testator's will, the
testator believes any of his the testator's children to be dead, and fails
to provide for such child in his the testator's will, the child shall
receive a share in the estate of the testator equal in value to that which
he the child would have received if the testator had died intestate,
unless it appears from the will or from other evidence that the testator
would not have devised anything to such child had he the testator
known that the child was alive.
SOURCE: IC 29-1-4-1; (09)IN0544.1.22. -->
SECTION 22. IC 29-1-4-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1. The surviving spouse
or domestic partner of a decedent who was domiciled in Indiana at
his the decedent's death is entitled from the estate to an allowance of
twenty-five thousand dollars ($25,000). The allowance may be claimed
against the personal property of the estate or a residence that is a part
of the decedent's estate, or a combination of both. If there is no
surviving spouse or domestic partner, the decedent's children who are
under eighteen (18) years of age at the time of the decedent's death are
entitled to the same allowance to be divided equally among them. If the
personal property and a residence that is a part of the decedent's estate
are less than twenty-five thousand dollars ($25,000) in value, the
spouse, domestic partner, or decedent's children who are under
eighteen (18) years of age at the time of the decedent's death, as the
case may be, are entitled to any real estate of the estate to the extent
necessary to make up the difference between the value of the personal
property plus the residence that is a part of the decedent's estate and
twenty-five thousand dollars ($25,000). The amount of that difference
is a lien on the remaining real estate. An allowance under this section
is not chargeable against the distributive shares of either the surviving
spouse, the surviving domestic partner, or the children, as the case
may be.
SOURCE: IC 29-1-5-8; (09)IN0544.1.23. -->
SECTION 23. IC 29-1-5-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 8.
(a) If after making
a will the testator is divorced, all provisions in the will in favor of the
testator's spouse so divorced are thereby revoked. Annulment of the
testator's marriage shall have the same effect as a divorce as
hereinabove provided in this subsection.
(b) If, after making a will, the testator's domestic partnership
with a former domestic partner is terminated under IC 31-11.5-4,
all provisions in the will in favor of the testator's former domestic
partner are thereby revoked.
With this exception, (c) Except as provided in this section, no
written will, nor any part thereof, can be revoked by any change in the
circumstances or condition of the testator.
SOURCE: IC 29-1-6-1; (09)IN0544.1.24. -->
SECTION 24. IC 29-1-6-1, AS AMENDED BY P.L.238-2005,
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 1. In the absence of a contrary intent appearing in
the will, wills shall be construed as to real and personal estate in
accordance with the rules in this section.
(a) Any estate, right, or interest in land or other things acquired by
the testator after the making of the testator's will shall pass as if title
was vested in the testator at the time of making of the will.
(b) All devises of real estate shall pass the whole estate of the
testator in the premises devised, although there are no words of
inheritance or of perpetuity, whether or not at the time of the execution
of the will the decedent was the owner of that particular interest in the
real estate devised. Such devise shall also pass any interest which the
testator may have at the time of the testator's death as vendor under a
contract for the sale of such real estate.
(c) A devise of real or personal estate, whether directly or in trust,
to the testator's or another designated person's "heirs", "next of kin",
"relatives", or "family", or to "the persons thereunto entitled under the
intestate laws" or to persons described by words of similar import, shall
mean those persons (including the spouse
or domestic partner) who
would take under the intestate laws if the testator or other designated
person were to die intestate at the time when such class is to be
ascertained, domiciled in this state, and owning the estate so devised.
With respect to a devise which does not take effect at the testator's
death, the time when such class is to be ascertained shall be the time
when the devise is to take effect in enjoyment.
(d) In construing a will making a devise to a person or persons
described by relationship to the testator or to another, any person
adopted prior to the person's twenty-first birthday before the death of
the testator shall be considered the child of the adopting parent or
parents and not the child of the natural or previous adopting parents.
However, if a natural parent or previous adopting parent marries the
adopting parent before the testator's death, the adopted person shall
also be considered the child of such natural or previous adopting
parent. Any person adopted after the person's twenty-first birthday by
the testator shall be considered the child of the testator, but no other
person shall be entitled to establish relationship to the testator through
such child.
(e) In construing a will making a devise to a person described by
relationship to the testator or to another, a person born out of wedlock
shall be considered the child of the child's mother, and also of the
child's father, if, but only if, the child's right to inherit from the child's
father is, or has been, established in the manner provided in
IC 29-1-2-7.
(f) A will shall not operate as the exercise of a power of
appointment which the testator may have with respect to any real or
personal estate, unless by its terms the will specifically indicates that
the testator intended to exercise the power.
(g) If a devise of real or personal property, not included in the
residuary clause of the will, is void, is revoked, or lapses, it shall
become a part of the residue, and shall pass to the residuary devisee.
Whenever any estate, real or personal, shall be devised to any
descendant of the testator, and such devisee shall die during the
lifetime of the testator, whether before or after the execution of the will,
leaving a descendant who shall survive such testator, such devise shall
not lapse, but the property so devised shall vest in the surviving
descendant of the devisee as if such devisee had survived the testator
and died intestate. The word "descendant", as used in this section,
includes children adopted during minority by the testator and by the
testator's descendants and includes descendants of such adopted
children. "Descendant" also includes children of the mother who are
born out of wedlock, and children of the father who are born out of
wedlock, if, but only if, such child's right to inherit from such father is,
or has been, established in the manner provided in IC 29-1-2-7. This
rule applies where the parent is a descendant of the testator as well as
where the parent is the testator. Descendants of such children shall also
be included.
(h) Except as provided in subsection (m), if a testator in the
testator's will refers to a writing of any kind, such writing, whether
subsequently amended or revoked, as it existed at the time of execution
of the will, shall be given the same effect as if set forth at length in the
will, if such writing is clearly identified in the will and is in existence
both at the time of the execution of the will and at the testator's death.
(i) If a testator devises real or personal property upon such terms
that the testator's intentions with respect to such devise can be
determined at the testator's death only by reference to a fact or an event
independent of the will, such devise shall be valid and effective if the
testator's intention can be clearly ascertained by taking into
consideration such fact or event even though occurring after the
execution of the will.
(j) If a testator devises or bequeaths property to be added to a trust
or trust fund which is clearly identified in the testator's will and which
trust is in existence at the time of the death of the testator, such devise
or bequest shall be valid and effective. Unless the will provides
otherwise, the property so devised or bequeathed shall be subject to the
terms and provisions of the instrument or instruments creating or
governing the trust or trust fund, including any amendments or
modifications in writing made at any time before or after the execution
of the will and before or after the death of the testator.
(k) If a testator devises securities in a will and the testator then
owned securities that meet the description in the will, the devise
includes additional securities owned by the testator at death to the
extent the additional securities were acquired by the testator after the
will was executed as a result of the testator's ownership of the
described securities and are securities of any of the following types:
(1) Securities of the same organization acquired because of an
action initiated by the organization or any successor, related, or
acquiring organization, excluding any security acquired by
exercise of purchase options.
(2) Securities of another organization acquired as a result of a
merger, consolidation, reorganization, or other distribution by the
organization or any successor, related, or acquiring organization.
(3) Securities of the same organization acquired as a result of a
plan of reinvestment.
Distributions in cash before death with respect to a described security
are not part of the devise.
(l) For purposes of this subsection, "incapacitated principal" means
a principal who is an incapacitated person. An adjudication of
incapacity before death is not necessary. The acts of an agent within the
authority of a durable power of attorney are presumed to be for an
incapacitated principal. If:
(1) specifically devised property is sold or mortgaged by; or
(2) a condemnation award, insurance proceeds, or recovery for
injury to specifically devised property are paid to;
a guardian or an agent acting within the authority of a durable power
of attorney for an incapacitated principal, the specific devisee has the
right to a general pecuniary devise equal to the net sale price, the
amount of the unpaid loan, the condemnation award, the insurance
proceeds, or the recovery.
(m) A written statement or list that:
(1) complies with this subsection; and
(2) is referred to in a will;
may be used to dispose of items of tangible personal property, other
than property used in a trade or business, not otherwise specifically
disposed of by the will. To be admissible under this subsection as
evidence of the intended disposition, the writing must be signed by the
testator and must describe the items and the beneficiaries with
reasonable certainty. The writing may be prepared before or after the
execution of the will. The writing may be altered by the testator after
the writing is prepared. The writing may have no significance apart
from the writing's effect on the dispositions made by the will. If more
than one (1) otherwise effective writing exists, then, to the extent of a
conflict among the writings, the provisions of the most recent writing
revoke the inconsistent provisions of each earlier writing.
SOURCE: IC 29-1-6-3; (09)IN0544.1.25. -->
SECTION 25. IC 29-1-6-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 3. A devise to a spouse
or domestic partner with a condition in restraint of marriage shall
stand, but the condition shall be void.
SOURCE: IC 29-1-7-23; (09)IN0544.1.26. -->
SECTION 26. IC 29-1-7-23 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 23. When a person
dies, his the person's real and personal property, passes to persons to
whom it is devised by his the person's last will, or, in the absence of
such disposition, to the persons who succeed to his the person's estate
as his the person's heirs; but it shall be subject to the possession of the
personal representative and to the election of the surviving spouse or
domestic partner and shall be chargeable with the expenses of
administering the estate, the payment of other claims and the allowance
is under IC 29-1-4-1, except as otherwise provided in IC 29-1.
SOURCE: IC 29-1-8-8; (09)IN0544.1.27. -->
SECTION 27. IC 29-1-8-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 8. Whenever, after the
inventory has been filed by a personal representative, it is established
that the estate of a decedent, exclusive allowance to the surviving
spouse,
domestic partner, or dependent children, does not exceed an
amount sufficient to pay the claims of classes 1 to 6 inclusive, the
personal representative upon order of the court shall pay the same in
the order provided and thereafter present
his the personal
representative's account with an application for the settlement and
allowance thereof. Thereupon, the court, with or without notice, may
adjust, correct, settle, allow or disallow such account, and, if the
account is settled and allowed, decree final distribution, discharge the
personal representative and close the administration.
SOURCE: IC 29-1-10-1; (09)IN0544.1.28. -->
SECTION 28. IC 29-1-10-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1. (a) Domiciliary
letters testamentary or domiciliary letters of general administration may
be granted to one (1) or more of the persons mentioned in this
subsection, natural or corporate, who are not disqualified, in the
following order:
(1) To the executor or executors designated in a will that has been
admitted to probate.
(2) To a surviving spouse
or domestic partner who is a devisee
in a will that has been admitted to probate.
(3) To a devisee in a will that has been admitted to probate.
(4) To the:
(A) surviving spouse
or domestic partner; or to the
(B) person or persons nominated by the surviving spouse
or
domestic partner; or
to the
(C) surviving spouse
or domestic partner and the person or
persons nominated by the surviving spouse
or domestic
partner.
(5) To:
(A) an heir;
(B) the person or persons nominated by an heir; or
(C) an heir and the person or persons nominated by an heir.
(6) If there is not a person listed in subdivisions (1) through (5),
then to any other qualified person.
(b) No person is qualified to serve as a domiciliary personal
representative who is:
(1) under eighteen (18) years of age;
(2) incapacitated unless the incapacity is caused only by:
(A) physical illness;
(B) physical impairment; or
(C) physical infirmity;
(3) a convicted felon, either under the laws of the United States or
of any state or territory of the United States;
(4) a resident corporation not authorized to act as a fiduciary in
this state; or
(5) a person whom the court finds unsuitable.
(c) A nonresident individual or corporate fiduciary may qualify and
serve as a joint personal representative with a resident personal
representative only by:
(1) filing with the court that has jurisdiction of the administration
of the decedent's estate a bond in an amount:
(A) not less than:
(i) the probable value of the estate's personal property; plus
(ii) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(B) not greater than the probable gross value of the estate; and
(2) otherwise meeting the qualifications of subsection (b).
(d) A nonresident individual who otherwise qualifies under
subsection (b) may qualify to serve as a personal representative in
Indiana only by filing with the court that has jurisdiction of the
administration of the decedent's estate:
(1) notice in writing of the individual's acceptance of the
appointment as personal representative;
(2) notice of the appointment of a resident agent to accept service
of process, notices, and other documents; and
(3) a bond in an amount:
(A) not less than:
(i) the probable value of the estate's personal property; plus
(ii) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(B) not greater than the probable gross value of the estate.
(e) If a personal representative becomes a nonresident of this state,
the representative remains qualified to serve only if the representative
files with the court that has jurisdiction of the administration of the
estate a bond in an amount:
(1) not less than:
(A) the probable value of the estate's personal property; plus
(B) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(2) not greater than the probable gross value of the estate.
(f) A nonresident individual who satisfies the conditions of
subsection (d) or (e) submits personally to the jurisdiction of the court
in any proceeding that relates to the estate of the decedent.
SOURCE: IC 29-1-15-9; (09)IN0544.1.29. -->
SECTION 29. IC 29-1-15-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 9. Perishable property
and other personal property which will depreciate in value if not
disposed of promptly, or which will incur loss or expense by being
kept, and so much other
other personal property as may be necessary
to provide allowance to the surviving spouse
or domestic partner and
children pending the receipt of other sufficient funds, may be sold
without notice, and title shall pass without prior authorization; but the
personal representative shall be responsible for the actual value of the
property unless, after making a report of such sale, and on a proper
showing, the court shall approve the sale.
SOURCE: IC 29-1-17-2; (09)IN0544.1.30. -->
SECTION 30. IC 29-1-17-2, AS AMENDED BY P.L.95-2007,
SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 2. (a) After the expiration of the time limit for the
filing of claims, and after all claims against the estate, including state
and federal inheritance and estate taxes, have been determined, paid,
or provision made therefor, except contingent and unmatured claims
which cannot then be paid, the personal representative shall, if the
estate is in a condition to be closed, render a final account and at the
same time petition the court to decree the final distribution of the
estate. Notice of the hearing of the petition shall be given under
IC 29-1-16-6.
(b) In its decree of final distribution, the court shall designate the
persons to whom distribution is to be made, and the proportions or
parts of the estate, or the amounts, to which each is entitled under the
will and the provisions of this probate code, including the provisions
regarding advancements, election by the surviving spouse
or domestic
partner, lapse, renunciation, adjudicated compromise of controversies,
and retainer. Every tract of real property so distributed shall be
specifically described therein. The decree shall find that all state and
federal inheritance and estate taxes are paid, and if all claims have been
paid, it shall so state; otherwise, the decree shall state that all claims
except those therein specified are paid and shall describe the claims for
the payment of which a special fund is set aside, and the amount of
such fund. If any contingent claims which have been duly allowed are
still unpaid and have not become absolute, such claims shall be
described in the decree, which shall state whether the distributees take
subject to them. If a fund is set aside for the payment of contingent
claims, the decree shall provide for the distribution of such fund in the
event that all or a part of it is not needed to satisfy such contingent
claims. If a decree of partial distribution has been previously made, the
decree of final distribution shall expressly confirm it, or, for good
cause, shall modify said decree and state specifically what
modifications are made.
(c) If a distributee dies before distribution to the distributee of the
distributee's share of the estate, the distributee's share may be
distributed to the personal representative of the distributee's estate, if
there is one; or if no administration on the deceased distributee's estate
is had and none is necessary according to IC 29-1-8, the share of the
deceased distributee shall be distributed in accordance with IC 29-1-8.
(d) The decree of final distribution shall be a conclusive
determination of the persons who are the successors in interest to the
estate of the decedent and of the extent and character of their interest
therein, subject only to the right of appeal and the right to reopen the
decree. It shall operate as the final adjudication of the transfer of the
right, title, and interest of the decedent to the distributees therein
designated; but no transfer before or after the decedent's death by an
heir or devisee shall affect the decree, nor shall the decree affect any
rights so acquired by grantees from the heirs or devisees.
(e) Whenever the decree of final distribution includes real property,
a certified copy thereof shall be recorded by the personal representative
in every county of this state in which any real property distributed by
the decree is situated except the county in which the estate is
administered. The cost of recording such decree shall be charged to the
estate.
SOURCE: IC 29-1-17-3; (09)IN0544.1.31. -->
SECTION 31. IC 29-1-17-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 3. (a) Except as
provided in subsection (b) hereof, shares of the distributees shall abate,
for the payment of claims, legacies, the allowance provided by
IC 29-1-4-1, the shares of pretermitted heirs or the share of the
surviving spouse or domestic partner who elects to take against the
will, without any preference or priority as between real and personal
property, in the following order:
(1) Property not disposed of by the will.
(2) Property devised to the residuary devisee.
(3) Property disposed of by the will but not specifically devised
and not devised to the residuary devisee.
(4) Property specifically devised.
A general devise charged on any specific property or fund shall, for
purposes of abatement be deemed property specifically devised to the
extent of the value of the thing on which it is charged. Upon the failure
or insufficiency of the thing on which it is charged, it shall be deemed
property not specifically devised to the extent of such failure or
insufficiency.
(b) If the provisions of the will or the testamentary plan or the
express or implied purpose of the devise would be defeated by the
order of abatement stated in subsection (a) hereof, the shares of
distributees shall abate in such other manner as may be found
necessary to give effect to the intention of the testator.
SOURCE: IC 29-1-17-4; (09)IN0544.1.32. -->
SECTION 32. IC 29-1-17-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4. When real or
personal property which has been specifically devised, or charged with
a legacy, shall be sold or taken by the personal representative for the
payment of claims, general legacies, the allowance provided by
IC 29-1-4-1, the shares of pretermitted heirs or the share of the
surviving spouse or domestic partner who elects to take against the
will, other legatees and devisees shall contribute according to their
respective interests to the legatee or devisee whose legacy or devise has
been sold or taken, so as to accomplish an abatement in accordance
with the provisions of IC 29-1-17-3. section 3 of this chapter. The
court shall, at the time of the hearing on the petition for final
distribution, determine the amounts of the respective contributions and
whether the same shall be made before distribution or shall constitute
a lien on specific property which is distributed.
SOURCE: IC 29-1-17-10; (09)IN0544.1.33. -->
SECTION 33. IC 29-1-17-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 10. (a) When the estate
is otherwise ready to be distributed, it shall be distributed in kind to
whatever extent it is practicable, unless the terms of the will otherwise
provide or unless a partition sale is ordered. Except as provided in
subsection (b) of this section, any general legatee may elect to take the
value of
his the legatee's legacy in kind, and any distributee, who by
the terms of the will is to receive land or any other thing to be
purchased by the personal representative, may, if
he the distributee
notifies the personal representative before the thing is purchased, elect
to take the purchase price or property of the estate which the personal
representative would otherwise sell to obtain such purchase price.
Values for the purposes of such distributions in kind shall be
determined at a time not more than ten (10) days prior to the filing of
the petition for distribution, and if necessary to avoid substantial
inequities may be redetermined at any time prior to the order of
distribution.
(b) If the terms of the will direct the purchase of an annuity, the
person to whom the income thereof shall be directed to be paid shall
not have the right to elect to take the capital sum directed to be used for
such purchase in lieu of such annuity except to the extent that the will
expressly provides that an assignable annuity be purchased. Nothing
herein contained shall affect the rights of election by a surviving spouse
or domestic partner against a testamentary provision as provided in
this article.
(c) If property distributed in kind or a security interest therein is
acquired in good faith for value by a purchaser from or lender to a
distributee who has received an instrument or deed of distribution or
release from the personal representative, or is so acquired in good faith
by a purchaser from or lender to a transferee of the distributee, the
purchaser or lender takes title free of any right of an interested person
in the estate and incurs no personal liability to the estate, or to any
interested person, whether or not the distribution was proper or
supported by court order or the authority of the personal representative
was terminated before execution of the instrument or deed. This
subsection protects a purchaser from or lender to a distributee who, as
personal representative, has executed a deed of distribution to himself,
the distributee, and a purchaser from or lender to any other distributee
or his the distributee's transferee. To be protected under this
subsection, a purchaser or lender need not inquire whether a personal
representative acted properly in making the distribution in kind, even
if the personal representative and the distributee are the same person,
or whether the authority of the personal representative had terminated
before the distribution.
SOURCE: IC 31-11.5; (09)IN0544.1.34. -->
SECTION 34. IC 31-11.5 IS ADDED TO THE INDIANA CODE
AS A
NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2009]:
ARTICLE 11.5 DOMESTIC PARTNERSHIPS
Chapter 1. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Domestic partner" means an individual who is in a
relationship with another individual in which both individuals:
(1) are at least eighteen (18) years of age;
(2) are not related to each other by blood or marriage within
four (4) degrees of consanguinity under civil law;
(3) are not married or in a civil union or domestic partnership
with another individual;
(4) agree to be in a relationship of mutual interdependence in
which each individual contributes to the maintenance and
support of the other individual and the relationship; and
(5) register with the clerk of the circuit court of the county in
which the individuals reside as a domestic partnership.
Sec. 3. "Domestic partnership" means a domestic partnership
registered under IC 31-11.5-2.
Chapter 2. Domestic Partnership Registry
Sec. 1. The clerk of each circuit court shall maintain a domestic
partnership registry.
Sec. 2. A couple may register the couple's relationship of mutual
interdependence as a domestic partnership if:
(1) each individual satisfies the requirements described in
IC 31-11.5-1-2(1) through IC 31-11.5-1-2(4); and
(2) the individuals have been legally domiciled together in
Indiana for at least the twelve (12) months preceding the date
the relationship is registered as a domestic partnership under
this chapter.
Sec. 3. To register as a domestic partnership, a couple must
jointly file with the clerk of the circuit court of the county in which
the domestic partnership will maintain a common residence a
declaration under oath establishing the domestic partnership on a
form meeting the requirements of IC 31-11.5-3.
Sec. 4. The clerk of the circuit court shall retain the declaration
in the domestic partnership registry established under section 1 of
this chapter and return two (2) copies of the declaration to the
domestic partners at the address provided as their common
residence.
Sec. 5. The clerk of the circuit court shall charge a fee for
registration to pay the expenses incurred by the clerk to maintain
the domestic partner registry.
Chapter 3. Forms
Sec. 1. A domestic partnership registry established under this
article must be maintained on forms that meet the requirements of
this chapter.
Sec. 2. A declaration filed under IC 31-11.5-2 must:
(1) adequately identify each individual signing the form by
name, including former names, residence, and date and place
of birth; and
(2) contain an assertion under oath that each individual
satisfies the requirements described in IC 31-11.5-1-2(1)
through IC 31-11.5-1-2(4) at the time the declaration is filed.
Chapter 4. Termination of a Domestic Partnership
Sec. 1. (a) A registered domestic partnership is terminated by
the marriage of either registered domestic partner or by the filing
with the circuit court clerk of either of the following:
(1) A notice under oath signed by both registered domestic
partners before a notary that the registered domestic partners
consent to the termination.
(2) A notice under oath from either registered domestic
partner that the other registered domestic partner was served
with a notice of intent to terminate the partnership.
(b) Except as provided in subsection (c), the notice described in
subsection (a)(2) must be personally served upon the registered
domestic partner.
(c) If personal service is not feasible, then substitute service may
be made in the manner prescribed by the Indiana Rules of Trial
Procedure for the commencement of a civil action.
Sec. 2. The termination of a domestic partnership under this
chapter is effective:
(1) on the date either domestic partner is married;
(2) on the date that a consent to terminate the domestic
partnership is filed in the case of a termination described in
section 1(a)(1) of this chapter; or
(3) sixty (60) days after the date on which service of a notice
of intent to terminate the domestic partnership is made in the
case of a termination described in section 1(a)(2) of this
chapter.
Sec. 3. If a third party in reliance on the existence of a registered
domestic partnership suffers loss because of a failure to receive
adequate notice of termination, each registered domestic partner
responsible for the failure to give notice is liable to pay the loss.
SOURCE: IC 32-17-2-1; (09)IN0544.1.35. -->
SECTION 35. IC 32-17-2-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1. (a) This section does
not apply to:
(1) mortgages;
(2) conveyances in trust; or
(3) conveyances made to husband and wife; or
(4) conveyances made to a domestic partnership (as defined in
IC 32-17-3-0.5).
(b) Every estate vested in executors or trustees as executors shall be
held by them in joint tenancy.
(c) Except as provided in subsection (b), a conveyance or devise of
land or of any interest in land made to two (2) or more persons creates
an estate in common and not in joint tenancy unless:
(1) it is expressed in the conveyance or devise that the grantees or
devisees hold the land or interest in land in joint tenancy and to
the survivor of them; or
(2) the intent to create an estate in joint tenancy manifestly
appears from the tenor of the instrument.
SOURCE: IC 32-17-3-0.5; (09)IN0544.1.36. -->
SECTION 36. IC 32-17-3-0.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 0.5. (a) As used in this chapter,
"domestic partner" has the meaning set forth in IC 31-11.5-1-2.
(b) As used in this chapter, "domestic partnership" means a
domestic partnership registered under IC 31-11.5-2.
SOURCE: IC 32-17-3-1; (09)IN0544.1.37. -->
SECTION 37. IC 32-17-3-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1. (a) This section
applies to a written contract in which a husband and wife or a
domestic partnership:
(1) purchase real estate; or
(2) lease real estate with an option to purchase.
(b) Except as provided in subsection (d), a contract described in
subsection (a) creates an estate by the entireties in the husband and
wife or domestic partners. The interest of neither party is severable
during the marriage or domestic partnership.
(c) Upon the death of either party to the marriage or domestic
partnership, the survivor is considered to have owned the whole of all
rights under the contract from its inception.
(d) If:
(1) a contract described in subsection (a) expressly creates a
tenancy in common; or
(2) it appears from the tenor of a contract described in subsection
(a) that the contract was intended to create a tenancy in common;
the contract shall be construed to create a tenancy in common.
SOURCE: IC 32-17-3-2; (09)IN0544.1.38. -->
SECTION 38. IC 32-17-3-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 2. (a) If a husband and
wife are divorced while a contract described in section 1(a) of this
chapter is in effect, the husband and wife own the interest in the
contract and the equity created by the contract in equal shares.
(b) If a domestic partnership is terminated under IC 31-11.5-4
while a contract described in section 1(a) of this chapter is in effect,
the former partners own the interest in the contract and the equity
created by the contract in equal shares.
SOURCE: IC 32-17-3-3; (09)IN0544.1.39. -->
SECTION 39. IC 32-17-3-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 3. (a) If:
(1) a husband and wife execute a title bond or contract for the
conveyance of real estate owned by them as tenants by the
entireties; and
(2) one (1) of the spouses dies:
(A) during the continuance of the marriage; and
(B) before the whole of the agreed purchase price has been
paid;
the interest of the deceased spouse in the unpaid part of the purchase
price passes to the surviving spouse in the same right as the surviving
spouse's rights of survivorship in real estate held as tenants by the
entireties.
(b) If:
(1) a domestic partnership executes a title bond or contract
for the conveyance of real estate owned by the domestic
partnership as tenants by the entireties; and
(2) one (1) of the partners dies:
(A) during the continuance of the domestic partnership;
and
(B) before the whole of the agreed purchase price has been
paid;
the interest of the deceased partner in the unpaid part of the
purchase price passes to the surviving partner in the same right as
the surviving partner's rights of survivorship in real estate held as
tenants by the entireties.
SOURCE: IC 32-17-3-4; (09)IN0544.1.40. -->
SECTION 40. IC 32-17-3-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4. (a) A joint deed of
conveyance by a husband and wife or domestic partnership is
sufficient to convey and pass any interest described in the deed of
either or both of them in land held by them as:
(1) tenants in common;
(2) joint tenants; or
(3) tenants by the entireties.
(b) An executed and recorded power of attorney by one (1) spouse
or domestic partner to the other spouse or domestic partner
authorizing the conveyance by the attorney in fact of any interest
owned:
(1) individually by the grantor (as defined in IC 32-17-1-1) of the
power of attorney; or
(2) with the grantor's spouse;
enables the attorney in fact through the exercise of the power of
attorney to effectively convey the interest in land by individually
making a deed of conveyance.
SOURCE: IC 32-17-11-29; (09)IN0544.1.41. -->
SECTION 41. IC 32-17-11-29 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 29. (a) This section
does not apply to an account.
(b) Except as provided in subsection subsections (c) and (d),
personal property that is owned by two (2) or more persons is owned
by them as tenants in common unless expressed otherwise in a written
instrument.
(c) Upon the death of either husband or wife:
(1) household goods:
(A) acquired during marriage; and
(B) in possession of both husband and wife; and
(2) any:
(A) promissory note;
(B) bond;
(C) certificate of title to a motor vehicle; or
(D) other written or printed instrument;
evidencing an interest in tangible or intangible personal property
in the name of both husband and wife;
becomes the sole property of the surviving spouse unless a clear
contrary intention is expressed in a written instrument.
(d) As used in this subsection, "domestic partnership" means a
domestic partnership registered under IC 31-11.5-2. Upon the
death of either partner in a domestic partnership:
(1) household goods:
(A) acquired during the domestic partnership; and
(B) in the possession of both partners; and
(2) any:
(A) promissory note;
(B) bond;
(C) certificate of title to a motor vehicle; or
(D) other written or printed instrument;
evidencing an interest in tangible or intangible personal
property in the name of both partners in the domestic
partnership;
becomes the sole property of the surviving partner unless a clear
contrary intention is expressed in a written instrument.
SOURCE: IC 32-17-13-2; (09)IN0544.1.42. -->
SECTION 42. IC 32-17-13-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 2. (a) Except as
otherwise provided by statute, a transferee of a nonprobate transfer is
subject to liability to a decedent's probate estate for:
(1) allowed claims against the decedent's probate estate; and
(2) statutory allowances to the decedent's spouse,
and domestic
partner (as defined in IC 32-17-3-0.5), or children;
to the extent the decedent's probate estate is insufficient to satisfy those
claims and allowances.
(b) The liability of the nonprobate transferee may not exceed the
value of nonprobate transfers received or controlled by the nonprobate
transferee.
(c) The liability of the nonprobate transferee does not include the
net contributions of the nonprobate transferee.