Bradford, J.
Case Summary
As of late 2019, Gene Bricker was married to Ann, and the couple had three children, including Dennis. In December of 2019, Gene executed his last will and testament (“the Will”), documents modifying a bank account (“the Farm Account”) to be payable to Dennis upon Gene’s death (“the POD Designation”), and two transfer-on-death (“TOD”) deeds regarding certain real estate (“the Real Estate”) in Hancock County in favor of Dennis (“the TOD Deeds”). In September of 2021, Gene died, and, in July of 2022, Ann filed her notice of intention to take against the Will and later petitioned to have the Real Estate and Farm Account included in the estate, which petition the trial court denied. Ann contends that the trial court erred in denying her petition because the transfers of the Real Estate and Farm Account were testamentary in nature and, therefore, the property should be included in Gene’s estate for purposes of satisfying her spouse’s elective share of the estate. Because we disagree, we affirm.
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Resolution of this appeal requires us to examine the provisions of Indiana Code chapter 32-17-14 (the Indiana Transfer on Death Property Act (“the TOD Act”)) and Indiana Code section 29-1-3-1 (the Spousal Inheritance Statute (“the SIS”)). Where, as here, the relevant facts are not in dispute, the interpretation of statutes is a pure question of law that is reviewed de novo….
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With this in mind, the SIS provides, in part, as follows: “When a married individual dies testate as to any part of the individual’s estate, the surviving spouse is entitled to take against the will[.] The surviving spouse, upon electing to take against the will, is entitled to one-half (½) of the net personal and real estate of the testator.” Ind. Code § 29-1-3-1(a). The question, then, is whether property subject to TOD transfers is to be considered part of the decedent’s “net personal and real estate” for purposes of the SIS. While items bequeathed in the will, i.e., “testamentary transfers,” are clearly included in the estate and therefore subject to the SIS, Indiana law also recognizes that “[w]hen a testator executes a trust in contemplation of his impending death and does so in order to defeat the surviving spouse’s statutory share, the trust will be considered testamentary in nature and will not defeat the spouse’s share.” In re Est. of Weitzman, 724 N.E.2d 1120, 1123 (Ind. Ct. App. 2000). Ann argues that the TOD transfers are similar to such a trust, i.e., testamentary in nature, and that their subject property should be pulled back into Gene’s estate.
While we acknowledge some similarity between TOD transfers and a trust designed to defeat a surviving spouse’s share, we nonetheless conclude that the TOD transfers in this case cannot be included in Gene’s estate…
TOD transfers are non-testamentary by definition, so, if the phrase “not considered testamentary” does nothing more than declare them to be non-testamentary, it is mere surplusage. The phrase, however, does not define or otherwise address the inherent nature of a TOD transfer, but, rather, how it is “considered.” In this context, the most logical interpretation of the phrase “not considered testamentary” is that TOD transfers cannot be found to be “testamentary in nature” for purposes of the SIS. Consequently, even if the TOD transfers would otherwise be subject to the rule mentioned in Weitzman, the trial court correctly denied Ann’s petition to have the Real Estate and Farm Account included in Gene’s estate.
We affirm the judgment of the trial court.
Riley, J., and Weissmann, J., concur.