Legal Question in Real Estate Law in Indiana

Re: selling home with divorce provisions

Whoever was determined to be the legal heir(s) of the deceased former spouse is now entitled to her share of the real estate being sold. The decedent's ownership right vested at the time the divorce decree was entered. At the time of death, if there was no will, the dededent's estate was to have been divided between the spouse and the children (or if there were no children, the parents or siblings of the decedent) according to the laws of intestate distribution of an estate. If there was a spouse who survived, then the spouse is entitled not only to an intestate share of the estate but also a survivor's allowance.

Generally, when one spouse dies, most of the property is owned between the spouses before death as joint tenants with rights of survivorship and/or as tenants by the entireties (as to real estate or household goods and furnishings) and by means of joint ownership for bank accounts and vehicles. It is only the property which is individually held by an individual at the time of his death which is affected by either the terms of a will or by the laws of intestate succession.

Depending upon the time this person died, the surviving spouse was entitled to either $10,000 or $15,000 or $25,000. If no estate had been opened, then it must be presumed that the decedent's individual estate (those things he owned in his name alone) did not total more than the statutory amount requiring the probating of an estate (essentially an amount equal to the survivor's allowance).

You should require the widow toprovide you with an affidavit showing that she administered the estate without going through probate because it was a small estate and showing what she received as the surviving spouse and what other heirs were entitled to.

Unless the 1/5 amount reserved for your former spouse in the decree is very large (over $25,000), then the widow is most likely entitled to the money. If it is a much larger amount, then she would be sharing it with other heirs (if there are any).