Updated October 8, 2026. Quick answer: No. Indiana is a common law state. At divorce, “The court shall presume that an equal division of the marital property” is just and reasonable (IC 31-15-7-5), and at death the surviving spouse can take against the will. The IRS lists nine community property states.
Indiana community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | An equal division of the marital property is presumed just and reasonable, and the presumption can be rebutted (IC 31-15-7-5) |
| At a spouse’s death | A surviving spouse who takes against the will is entitled to one-half of the net personal and real estate in the general case (IC 29-1-3-1) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Indiana General Assembly; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Indiana statutes say
Indiana is unusual among common law states in starting from an equal split. Section 31-15-7-4 says “The court shall divide the property in a just and reasonable manner”, and section 31-15-7-5 adds the equal-division presumption, which “this presumption may be rebutted by a party who” presents evidence on the listed factors. The history note on the divorce property section lists P.L.145-2026; the text read does not show what that act did.
At divorce in Indiana
The presumption is a starting point: a party can rebut it with evidence on the factors the section lists, such as property acquired before the marriage or by gift or inheritance.
At a spouse’s death in Indiana
Under IC 29-1-3-1, “the surviving spouse is entitled to take against the will”, and the survivor “is entitled to one-half (1/2) of the net personal and real estate” in the general case. The election is due “not later than three (3) months after the date” the chapter specifies.
What it does to basis when the first spouse dies
Because Indiana is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose an Indiana couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- Section 29-1-3-1 sets different shares for some second or later spouses; this page states only the general one-half rule.
- The documents read do not state a rule for a couple who moved to Indiana.
Common mistakes
- Treating the equal-division presumption as a guarantee; either party can rebut it.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: why only half steps up in a common law state, Indiana retirement taxes, and Indiana probate cost.
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Answer againSources
- IC 31-15-7 Chapter 7. Disposition of Property and Maintenance (Indiana Code 2026): https://iga.in.gov/ic/2026/Title_31/Article_15/Chapter_7.pdf
- IC 29-1-3 Chapter 3. Taking Against a Will and Rights of Pretermitted Heirs (Indiana Code 2026): https://iga.in.gov/ic/2026/Title_29/Article_1/Chapter_3.pdf
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.