January 2, 2019

Probate Code Does Not Recognize Pre-Mortem Compromises; Kent v. Kerr (In re Estate of Kent)

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Last September, we told you of a Court of Appeals decision which found that a probate court could enforce a family settlement agreement entered into prior to a death. Since then, the Indiana Supreme Court granted transfer. And it disagreed.

Gary is the father of John and Cynthia. Gary had a will, but while he was terminally ill, he asked John and Cynthia to enter into a settlement agreement regarding how their inheritance would be divided. Each signed the agreement and Gary’s attorney notarized it. A few days later, John sent Cynthia a notice purporting to rescind the agreement, but he did not tell Gary about this. Gary died about a month later.

John and Gary’s cousin, Kevin, filed a verified petition for probate of Gary’s will. Cynthia challenged this, relying on the family settlement agreement. However, the trial court would not enforce the agreement because John and Cynthia “had no vested interest” in Gary’s estate as he was then living, and John had rescinded the agreement. Cynthia appealed, the Court of Appeals reversed, and the Court granted transfer.

On transfer, the Court noted that the Compromise Chapter of the Probate Code gave interested parties a method to compromise certain contests or controversies about a will, estate, or testamentary trust.

We see no clear and unambiguous statement in the Compromise Chapter addressing when a contest or controversy may be compromised. The chapter could reasonably be interpreted as either allowing both pre- and post-mortem agreements or allowing only post-mortem agreements. Therefore, it is ambiguous and open to judicial interpretation.

But when looking at the rest of the Chapter, the Court found that the statutes “consistently used terms indicating that a contest or controversy can be compromised only after a person dies,” and connected some compromises “to specific activities that can happen only after a person dies.”

By its own terms, the Controversy Chapter applies to agreements entered into after the relevant person’s death. Notably absent from the text of the chapter is any language whereby it would apply to pre-mortem agreements. We cannot add new words to a statute but are bound to apply statutes as the legislature has written them. The legislature wrote the Controversy Chapter to apply only to post-mortem agreements.

The Court supported its conclusion by looking to the Compromise Chapter’s stated purpose—“to set up legal machinery whereby parties having an interest in a decedent’s estate may compromise any difference they may have with reference to a division of the corpus of the estate, and obtain a court order approving the compromise.” This language “presumes that someone has died.”

And the Court offered further support for its conclusion by doing a review of case law to conclude that “post-mortem compromises have been the norm in Indiana for at least 130 years.”

With these cases and the text and purpose of the Compromise Chapter in mind, we note that it is a fundamental legal principle that, in order to rely on a statute, the person or thing must fit within the statute’s scope. This principle applies even to agreements that the law favors, like family settlement agreements.

Because the agreement here was pre-mortem, it is not enforceable under the Compromise Chapter.

The Court left open the question of whether David’s decision or the agreement would be enforceable under principles of general contract law, as those issues were premature.

Justice Slaughter dissented, agreeing fully “with the Court of Appeals’ thoughtful treatment of these issues.” He feels that in the absence of a “clear and unambiguous” statutory foreclosure of pre-mortem agreements, such agreements should be enforced under the Compromise Chapter.


  1. Probate Code does not specifically authorize pre-mortem compromises, so they are not enforceable under the Code.
  2. Pre-mortem compromises may be enforceable under general contract law.