IN RE: the Supervised Estate of Wayne L. Willis (2026)

MEMORANDUM DECISION

Case Summary

[1] Following the death of Wayne L. Willis, Jeannie E. Willis, his surviving spouse, filed an election to take against the will of the decedent and for her spousal allowance. Paula Bischoff, in her capacity as the personal representative of the Estate of Wayne L. Willis (the Estate), objected, alleging Jeannie had waived her statutory rights in Wayne's estate. After a hearing, the trial court ruled Jeannie had not waived her statutory rights and had made a valid election to take against the will and for her spousal allowance. The Estate now appeals, and we affirm.

Facts and Procedural History

[2] In January 1984, Wayne and Jeannie were married for the first time. The marriage produced no children, although both had children from prior marriages. In February 1990, Jeannie filed a petition for dissolution of marriage under Cause No. 15C01-9000-DR-000051. A few months later, Wayne and Jeannie executed a five-page “Marital Agreement.” Ex. Vol. I p. 3 (formatting altered). In the Marital Agreement, the two agreed

each party shall have no rights, title, or interest in separate property of the other, and each party now hereby waives and releases all marital property rights ․ in the other's estate ․ and on the death of the Husband or the Wife, the decedent's property shall pass by Will or intestate succession as if the marriage between the Husband and Wife never occurred.

Id. at 3-4. After the Marital Agreement was signed, the dissolution proceeding was dismissed, and the parties remained married. However, in 1991, Wayne filed for dissolution of marriage under Cause No. 15C01-9110-DR-000230. This dissolution was granted in 1992. In the dissolution proceedings, Jeannie challenged the validity of the Marital Agreement, but the dissolution court upheld it and divided the marital estate as provided in that agreement.

[3] Sometime after the 1992 dissolution, Wayne and Jeannie reconciled and wished to marry again. However, prior to the remarriage, Wayne wanted to have an “attack-proof” agreement. Tr. Vol. II p. 119. In December 1994, Wayne, Jeannie, and their respective attorneys attended a hearing in Dearborn Circuit Court.¹ At the hearing, the parties indicated they had signed a two-page premarital agreement (the Premarital Agreement) and requested the court “approve” that agreement. Ex. Vol. I p. 17. After taking testimony from the parties and admitting the Premarital Agreement into evidence, the court issued an order finding the Premarital Agreement to be “fair and equitable” and “approved[.]” Id.

[4] Wayne and Jeannie were married for a second time in February 1995. They remained married until Wayne's death in April 2024. On July 10, 2024, Jeannie filed notice of her election to take against the will as the surviving spouse under Indiana Code section 29-1-3-1 and to receive spousal allowance under Indiana Code section 29-1-4-1. The Estate objected, and on August 28, 2025, the court held a hearing on this issue.

[5] At the hearing, the Estate argued Jeannie waived her spousal rights in the Premarital Agreement. However, neither the Estate nor Jeannie had a copy of the Premarital Agreement. And although the Premarital Agreement was entered as an exhibit at the 1994 hearing, that exhibit was later “destroyed or misplaced.” Tr. Vol. II p. 189. As such, the Premarital Agreement itself was not admitted at the hearing.

[6] Jeannie testified she had no memory of the December 1994 hearing or the Premarital Agreement. Nonetheless, she testified she was “sure that [she] did not waive the right to a spousal claim[.]” Id. at 88. Gary Sorge, Wayne's former attorney, also testified. As to the purpose of the 1994 hearing, Sorge testified:

[Wayne and Jeannie] got divorced. They wanted to get remarried. Wayne wanted me to come up with an agreement that was ironclad because he thought he'd had one to begin with. And I told him it was, as much as you could be. In short, I told him the only way to get a more permanent agreement would be to have it in front of a judge, the judge have the parties present, and the agreement to get approved in open court. And I said that's virtually the only way you can have an ironclad agreement. And that's what he did.

Id. at 118. As Sorge's direct examination continued, the Estate asked him about the contents of the Premarital Agreement. Jeannie objected, arguing the Premarital Agreement was a lost court record and thus the Estate must comply with Indiana Administrative Rule 10(D) to reconstruct that record. The Estate responded that the Premarital Agreement was a written contract, and thus Sorge could testify as to its contents under Indiana Evidence Rule 1004. Ultimately, the court sustained Jeannie's objection but allowed the Estate to continue questioning Sorge in an offer to prove. As part of the offer to prove, Sorge testified that while he did not remember the specific language included in the Premarital Agreement, it was a two-page agreement “reaffirming” the 1990 Marital Agreement, including the provision waiving spousal rights. Id. at 156.

[7] Following the hearing, the court issued an order containing findings of fact and conclusions of law. The court first reiterated it sustained an objection as to Sorge's testimony “reconstructing the contents of” the Premarital Agreement. App. Vol. II p. 29. Nonetheless, the court went on to find that “even if allowed, the proffered testimony and reasonable inferences drawn therefrom do not rise to a level of establishing the contents of the premarital agreement[.]” Id. at 30. Specifically, the court noted inconsistencies between Sorge's testimony and the transcript of the 1994 hearing, as well as the length of time that had passed. The court stated “that even if the proffered testimony were admitted” “the Estate has not proven the existence of or the terms of an agreement wherein Jeannie waived her spousal claims.” Id. at 33. The court then found Jeannie to be entitled to her spousal allowance and elective share, subject to litigation in another case.² The Estate now appeals.

Discussion and Decision

[8] The Estate challenges the trial court's conclusion that Jeannie did not waive her rights to spousal allowance and an elective share. Because the trial court here entered findings of fact and conclusions, we apply our common two-step standard of review. Beach v. Spiech, Trustee of the Dauby Family Trust, 208 N.E.3d 619, 623 (Ind. Ct. App. 2023).

We consider first whether the evidence supports the findings and then whether the conclusions support the judgment. In re Estate of Owen, 855 N.E.2d 603, 608 (Ind. Ct. App. 2006). In doing so, we neither reweigh the evidence nor reconsider witness credibility and view the evidence only in the light most favorable to upholding the judgment. Id. The trial court's findings and conclusions will be overturned only if the record contains no facts or inferences supporting them. Id. In other words, the trial court's judgment must be clearly erroneous. Id. Any question of law is reviewed de novo. Id.

Id.

[9] “In Indiana, surviving spouses hold certain statutory rights upon the death of their spouse.” Boetsma v. Boetsma, 768 N.E.2d 1016, 1020 (Ind. Ct. App. 2002), reh'g denied, trans. denied. One such right is the spousal allowance, which entitles a surviving spouse to an allowance of $25,000.00 from their deceased spouse's estate. Ind. Code § 29-1-4-1(a) (2009). A surviving spouse may also elect to take against the provisions of the deceased spouse's will. See Ind. Code § 29-1-3-1 (2005). However, these statutory rights “are not inviolate and may be waived.” Boetsma, 768 N.E.2d at 1020. Both statutory rights may be waived “by a written contract, agreement, or waiver signed by the party waiving” the rights. Ind. Code §§ 29-1-2-13, 29-1-3-6. “An antenuptial agreement may suffice to waive the statutory election.” Boetsma, 768 N.E.2d at 1020.

[10] Here, Jeannie timely petitioned for her spousal allowance and elective share pursuant to the above statutes. It is therefore the Estate's burden to show Jeannie waived these rights. See Boetsma, 768 N.E.2d at 1019. The trial court concluded the Estate failed to do so, and we agree.

[11] As an initial matter, we note the Estate first challenges the trial court's exclusion of Sorge's testimony regarding the contents of the Premarital Agreement. Specifically, the Estate contends the testimony was admissible under Indiana Evidence Rule 1004. Although the court did not admit this testimony, an offer to prove was made and thus this testimony is available in the record. The trial court later concluded that, even with this testimony, the Estate failed to prove Jeannie waived her rights. Because we agree that even with the challenged evidence the Estate failed to meet its burden, we do not address whether or not its exclusion was an error.

[12] Indisputably, Wayne and Jeannie signed the Premarital Agreement. However, the issue here is not whether a premarital agreement existed, but whether the agreement contained a waiver of spousal rights. See Taylor v. Taylor, 643 N.E.2d 893, 896 (Ind. 1994) (“However, the issue here is whether any agreement extended to the waiver of the right to elect to take against the will.”). The Premarital Agreement could not be produced, and thus its contents are unknown. Jeannie testified that the Premarital Agreement did not contain a waiver, while Sorge testified that it did. The trial court did not find Sorge's testimony credible, citing inconsistencies and the amount of time that had elapsed. The Estate argues the court erred in not crediting this testimony, but this is a request to reweigh evidence and assess witness credibility, which we do not do. See Beach, 208 N.E.3d at 623. Ultimately, it was the Estate's burden to prove the Premarital Agreement contained a waiver of Jeannie's spousal rights, and it did not do so. Therefore, the trial court did not err in concluding Jeannie was entitled to her spousal allowance and elective share.

[13] Affirmed.

FOOTNOTES

1.   This hearing was held under a new cause number. See Cause No. 15C01-9411-CP-000108. No further proceedings occurred in that case.

2.   Specifically, the court stated, “[T]he amount of the elective share is subject to litigation in 15D02-2506-CT-0022 wherein the Estate has filed claims against Jeannie seeking to recover[ ] 8 million dollars in alleged improper transfers to her.” App. Vol. II p. 33.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.