Spousal Allowance in Indiana Probate

Video

Good morning, folks. It’s Andy Stautz at Stautz Law. I am back today with another talk about Indiana probate law and estates. Today we’re talking about the spousal allowance. And this has its own section in the probate code, Indiana Code 29-1-4-1. And it is exactly what it says on the tin. It is an allowance of $25,000 for the surviving spouse of a decedent.  

So in an estate administration, let’s say someone dies, they leave behind $100,000 worth of stuff, $25,000 of that goes straight to the surviving spouse before any creditors are paid, before anyone else gets a distributive share. It’s just kind of like automatic, okay?  

This has deep roots historically. Back when women didn’t have as many rights, this was kind of like a widow’s provision, okay, to make sure that specifically a widow would have enough to live on, and that goes back to biblical times and whatever. So deep roots in there historically, and it’s kind of still there.  

Obviously, women have rights now. The spousal allowance applies to both husbands and wives now, not just widows. But it’s an important thing to know about, I think.  

Firstly, because, you know, it’s $25,000, that matters when you’re administering an estate. 

A couple interesting things about this provision, just for background. In the definitions section of the probate code, “net estate” is defined as the estate after the spousal allowance has been taken. So this really does come right off the top.  

Second interesting thing is the spousal allowance has stayed $25,000. There is a another key number in the probate code, which is the small estate limit, okay, below which you don’t need to do a formal probate. And that used to be $25,000 too. So it kind of made sense for the small estate limit and the spousal allowance to be the same, because that meant for people who died without much money, right, the spousal allowance, if the estate is smaller than spousal allowance, you know that no one else is getting anything.  

But the small estate limit has risen over time. It’s now $100,000. So it’s possible you have a small estate that isn’t taken up entirely by the spousal allowance and goes to other people. That could be creditors, that could be other […] distributees. But it’s kind of interesting that those numbers used to be the same, which kind of made sense. And now they’re a little different. So you’ve got a couple more different types of scenarios.  

And the last point I’ll make on the topic of the spousal allowance is, like I said, it gets paid first before anything, before any creditors. So sometimes you’ll see it work with what’s called the summary closing or the summary distribution provisions, which are somewhere else, I think they’re, 29-1-8 or something, 8-3. I’ll try to put the link in the text version of this post.  

And that says, if you discover that there aren’t assets to satisfy all claims, or if you discover that there’s no money there, you can basically close the estate immediately, distribute to who it goes to, file a report with the court saying, look, you know, here’s the money.  

So that could come up in a scenario where you think there’s an asset in the estate that’s not, or you don’t know what’s out there. You open an estate and then you discover later, okay, no, the spousal allowance will be all of it, or the spousal allowance plus, you know, a priority credit or claim, whatever the case may be. So that’s kind of how those interact.  

But it’s just an important . . . the spousal allowance is an important provision in the law. It’s $25,000 right now, you know, as of whatever, December 2025. And that’ll be something we talk about if you come to me to do a probate administration. Obviously, the more planning you do in advance, the less the spousal allowance matters because your estate plan will probably work around it or, you know, do other things so you’re not necessarily in probate.  

But if you are doing a probate administration, it’s a topic to discuss, and we will. So that was general information. If you need help with your case or you want specific legal advice, you’ve got to call me. My phone number is right at the end screen. You’re on my website. So I would love to talk to you. Thanks for watching today, and bye for now.