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"Take against the will"

BLOG FOR OCTOBER 28, 2015 The Story: George died, leaving a wife, Martha, and two children by a previous marriage. He had a Last Will and Testament wherein he left everything to his children and nothing to Martha. Question: Does Martha have any recourse? Answer: Martha can elect to “take against the will”. Because Martha is a “childless spouse”, she is entitled to take 1/3 of the net value of the personal property in George’s probate estate and 25% of the net value of the real estate in George’s probate estate. If Martha had children with George, then she would have been entitled to 50% of the net value of the personal property and 50% of the net value of the real estate in George’s probate estate. The children do not have the right to take against the will. The right to elect to take against the will only inures to the surviving spouse. See IC 29-1-3-1.

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