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Husband allowed to petition for survivor's allowance

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Even though a wife had filed for divorce from her husband at the time she was killed, the husband is still allowed to petition for survivor’s allowance, the Indiana Court of Appeals affirmed Wednesday. The appellate judges cited caselaw from the 1800s to support their decision.

Melissa and Jason Patrick had issues in their marriage, and Melissa filed for divorce. Jason admitted that he also considered divorce, but Melissa filed before him. Jason began a relationship with Sarah Jones, who was divorcing her husband. Jason stayed at Jones’ house a few times a week. Melissa began a relationship with Jones’ ex-husband, who later murdered her when she told him she wanted to end their romantic relationship.

Jason filed a petition of surviving spouse for a statutory allowance pursuant to Indiana Code 29-1-4-1. Melissa’s estate argued that I.C. 29-1-2-14 barred the claim, which says “If either a husband or wife shall have left the other and shall be living at the time of his or her death in adultery, he or she as the case may be shall take no part of the estate or trust of the deceased husband or wife.”

Much of the parties’ arguments and evidence dealt with the “living in adultery” aspect of the statute, but didn’t discuss much of the other element of the statute – abandonment. The appellate court focused on the abandonment element, and cited several cases, including ones from 1829, 1866 and 1916 to conclude that in order to divest Jason of his survivor’s share, the estate was required to prove that he “left” Melissa. This means that he left her “willfully, without justification … with an intention of causing a perpetual separation of the parties,” but he couldn’t have “left” her under I.C. 29-1-2-14 if the parting was mutually agreed upon.

The evidence showed when Melissa filed for dissolution,Jason had been staying at his father’s house. The evidence supports that they separated by mutual consent and he exercised regular visitation with his children. The estate did not prove the element of abandonment, so the trial court did not clearly err in denying the estate’s motion to dismiss Jason’s petition for survivor’s allowance, wrote Judge Ezra Friedlander in In the Matter of the Estate of Melissa K. Patrick: Yvonne Griffith v. Jason Patrick, No. 17A03-1104-ES-190.

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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