October 2011 Vol. 4, No. 9




Kappel v Kappel, 946 NE2d 58 (Ind Ct App, 2011).

Facts:Nathaniel Kappel died in 2004, leaving as his heirs his second wife, Margaret Kappel, and four children from his first marriage. Margaret and one of the children, Donald Eugene Kappel, were originally co-administrators of the estate. In 2008, Margaret petitioned to be discharged as administrator. The court granted the discharge and set a deadline of December 19, 2008, for Margaret to finalize accounting of her portion of the estate. In October 2009 Margaret filed a "Petition of Surviving Spouse for Statutory Allowance" based on a section of the Indiana Probate Code that provides a $25,000 allowance for a surviving spouse. Ind Code &§ 29-1-4-1(a).

In response, the estate objected, arguing that Margaret's petition for a statutory allowance was not timely and should not be granted. The estate said that the petition exceeded the statutory limit for claims against an estate, which the Code gives as nine (9) months after the decedent's death. Ind Code &§ 29-1-14-1(d). The probate court found in favor of Margaret and ordered the estate to pay the allowance. The estate appealed.

Holding:Affirmed. The court of appeals found that Margaret's petition for the spousal allowance was not untimely because the spousal allowance was not subject to the nine-month limit for claims. The purpose of the nine-month limit, the court said, is to allow an executor to be able to be "absolutely certain that all of the estate's debts have been identified." The spousal allowance is not intended to be included in the nine-month limit because the estate will know immediately whether there is a spouse that survives the decedent and would be eligible for the allowance. "The executor knows that if there is a surviving spouse&€¦ then the payment of allowance is due."

Therefore, the purpose of the statutory limit is not applicable to a surviving spouse allowance. In addition, the court pointed out that the language of the surviving spouse allowance statute makes it clear that the surviving spouse is automatically entitled to the $25,000. The spouse does not even need to petition for the money to be eligible for it. So naturally, "if a surviving spouse need not file a demand for payment of the survivor's allowance at all, the spouse need not do so within the nine-month period of time prescribed by [the code]."

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