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ISC -Trust Distribution Division Hinging on Beneficiary’s Marital Status was Not Unlawful Restraint

By Michael R. Kohlhaas

HELD: Vacating the Court of Appeals’ contrary determination last year, the Indiana Supreme Court held that a trust’s distribution provision, which hinged on whether the beneficiary was married, was not an unlawful restraint against marriage.

FACTS & PROCEDURAL HISTORY: Rotert was one of two adult children of Marcille, who passed away in 2016. Prior to Marcille’s death, she executed a revocable trust. Operative to Rotert’s share of the trust property was this: In the event that [Rotert] is unmarried at the time of my death, I give, devise, and bequeath his share of my estate to him outright and the provisions of this trust shall have no effect. However, in the event that he is married at the time of my death, this trust shall become effective, as set out below. . . .

At the time of Marcille’s death, Rotert was, in fact, married. Rotert later petitioned to docket the trust and requested summary judgment that the above provision was void as a restraint on marriage and against public policy. That summary judgment motion was denied, from which Rotert appealed.

In 2020, the Indiana Court of Appeals reviewed an extended history of Indiana case law expressing skepticism towards restraints on marriage. Applying that history to Rotert, the Court concluded that “the marriage provision simply cannot be interpreted as anything other than an encouragement for Rotert to divorce his wife of almost twenty years upon the opening of the estate . . .” Thus, the Court concluded, the provision was void as a restraint on marriage and against public policy.

The Indiana Supreme Court granted transfer, thus vacating the Court of Appeals’ decision. The Indiana Supreme Court held that the statutory prohibition of restraints against marriage applies only to dispositions to a spouse by will, and not to dispositions made by trust.

The Indiana Probate Code provides that “[a] devise to a spouse with a condition in restraint of marriage shall stand, but the condition shall be void.” Ind. Code § 29-1-6-3. Concluding that the word “devise” applies to wills, but not to trusts, the code section does not apply to dispositions made by trust. Further, the Indiana Trust Code does not include a similar provision that proscribes conditions in restraint of marriage. The trial court’s summary judgment against Rotert was affirmed.

Justice Goff wrote a lengthy concurrence in result to opine that he would conclude that the prohibition against restraints on marriage apply to testamentary trusts as well as wills. However, he nevertheless concurred in the result of the case, reasoning that the terms of the trust in question amount to a permissible condition of acquisition, rather than an impermissible condition of retention (as opposed to, for example, a trust term that granted a beneficiary an interest in property that would be subject to divesting in the event the unmarried beneficiary later married.)


James A. Reed and Michael R. Kohlhaas represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Cross Glazier Reed Burroughs, PC, is the premiere boutique family law firm in the state of Indiana. Visit the firm’s website at

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