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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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