Law Tips: Be Vigilant Concerning Spousal Rights After the Death of One Party

Divorce Law vs. Estate Law

Is Filing For Divorce Close Enough? Does “It ain’t over ’til the fat lady sings” apply in divorce? What happens to all the spousal rights when a divorce is pending but one party dies before the final dissolution decree is entered? In most situations, not much. You are still husband and wife. Filing an action for dissolution does not terminate a spouse’s marital status for purposes of inheritance and other death-time rights. Only the decree of dissolution determines that the status of marriage has ended…

In our recent CLE entitled Divorce Law vs. Estate Law & Designated Beneficiaries Kent Jeffirs, our faculty participant who practices in Crown Point, Indiana, takes up issues such as “Death During Divorce: Is Filing For Divorce Close Enough?” and “Little Known Statutes that May Fight the Good Fight in Death During Divorce.” I’m pleased to bring Law Tips readers a bit of Kent’s expertise in preventing unfortunate and difficult-to-solve circumstances for your clients.

…While one could change his will while the divorce is pending, the spousal allowance and right to elect against the will remain until the final dissolution decree is entered. So no matter how contentious the divorce and no matter how long the parties have been separated, the surviving spouse in a divorce where no final decree of dissolution was entered can claim any individually titled property he stood to lose in the divorce, all jointly titled property as the surviving co-owner, plus a spousal allowance of $25,000 and an intestate or elective share of any assets of the deceased spouse’s estate that were titled in her name alone if the surviving spouse was fortuitous enough to have his spouse die while the divorce is pending. Indiana case law and statutes offer very few avenues for relief upon the mere filing for divorce if the final dissolution decree is not entered prior to the death of a party to the divorce.

“Little Known and Little Used Statutes that May be Used to “Fight the Good Fight” Upon the Death of a Party During a Dissolution of Marriage Action”

Two statutes contained in the Indiana Probate Code have remained as descendants of two statutes promulgated by the Indiana Legislature in the middle of the nineteenth century (the 1850’s!). These statutes have carried through what some consider to be antiquated concepts of penalizing “adultery” and “spousal abandonment” to modem times in spite of the law’s “more enlightened” transition to “no-fault” divorce. Indiana Code 29-1-2-14 and 29-1-2-15 provide as follows:

29-1-2-14. Adulterous husband or wife. If either a husband or wife shall have left the other and shall be living at the time of his or her death in adultery, he or she as the case may be shall take no part of the estate or trust of the deceased husband or wife.

29-1-2-15. Abandonment of spouse. If a person shall abandon his or her spouse without just cause, he or she shall take no part of his or her estate or trust.

See also I.C. 30-4-2.1-9. Applicability of adultery and abandonment forfeiture provisions.
(A trust of a deceased spouse is subject to the following: (1) I.C. 29-1-2-14 and (2) I.C. 29-1-2-15).

In Estate of Calcutt v. Calcutt, 576 N.E.2d 1288 (Ind. App. 1991), trans. denied, the court reaffirmed much earlier decisions that pursuant to I.C. 29-1-2-15, in order for the prohibition in 29-1-2-14 to apply, the surviving spouse must have “abandoned” the decedent before his or her death. See also In re Estate of Patrick, 958 N.E.2d 1155 (Ind. App. 2011 ) (Trial court properly denied estate’s motion to dismiss husband’s petition for survivor’s allowance under I.C. 29-1-4-1 as he did not “leave” his wife within the meaning of l.C. 29-1-2-14. Evidence supported trial court’s finding that husband and wife had separated by mutual consent, which did not support a finding of abandonment.)

One might ask if “abandonment” is necessary under I.C. 29-1-2-14 to prevent a surviving spouse from obtaining the survivor’s allowance or any portion of the estate, is 29-1-2-15 redundant? Note that under 29-1-2-15 no adultery is required. However, as reaffirmed by the above appellate decisions, 29-1-2-14 does require a finding of “abandonment” before a spouse will lose their spousal allowance or inheritance. Indiana Code 29-l-2-14’s requirement that a spouse “shall have left the other” has thus been interpreted as synonymous with “abandonment.”

These statutes should be utilized with extreme caution. Harking back to the days of having to prove fault as grounds for a divorce, many practitioners believe these statutes lead to extremely negative and costly litigation where an estate may try to take advantage of the surviving spouse in what had become a troubled marriage or may involve pitting “blended families” against one another in contentious litigation or even seek to assign blame when one spouse commits suicide.

While this author agrees with many of the negative sentiments expressed on this topic, repeal of these statutes while the law provides that the death of a party during a divorce has little or no effect on a soon-to-be-ex-spouse receiving all or a substantial share of the deceased spouse’s estate would be inequitable. Indiana’s Probate Code provides that a spouse cannot be appointed executor of the deceased spouse’s estate if a divorce is pending, but that divorcing spouse can nonetheless claim any individually owned property he stood to lose in the divorce, all jointly held property as the surviving co-owner, a spousal allowance of $25,000 and an intestate or elective inheritance if he is fortuitous enough to have his spouse die while the divorce is pending. If the “antiquated” Abandonment and  Adultery Statutes is to be changed, this harsh result should be changed also.

Thanks to Kent Jeffirs for his commentary on important issues concerning death during divorce. This conversation will continue in Law Tips next week as he provides more input for you on what divorce lawyers can do to protect clients’ estate rights. FYI, Kent offers a comprehensive discussion of the situations you may encounter with your clients during his CLE presentation, addressing subjects such as, executors, ERISA and divorce court jurisdiction. If you are interested in the Video Replay or the On Demand Seminar of  “The Main Event: Divorce Law vs. Estate Law & Designated Beneficiaries,”  Click Here.

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About our Law Tips faculty participants:
Kent A. Jeffirs is a sole practitioner in Crown Point, Indiana, who for the last 22 years has concentrated his legal practice in estate planning, probate and trust administration, guardianships, real estate and small business counseling. In 2007, Mr. Jeffirs was one of the first group of Indiana attorneys to be board certified as a Specialist in Wills, Trusts & Estates by the Indiana Trust and Estate Specialty Board. He has also testified in court proceedings as an expert witness on probate matters. Mr. Jeffirs received his B.A. degree, with honors, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Indiana University, Bloomington.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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