1. (a) Except as provided in subsection (b), the right of election of the surviving spouse is personal to the spouse. It is not transferable and cannot be exercised subsequent to the spouse's death. A person with a valid power of attorney for the surviving spouse may elect for the spouse if the power of attorney has general authority with respect to estates as provided in IC 30-5-5-15 (a)(4). If the surviving spouse is a protected person, the court may order the guardian of the spouse's estate to elect for the spouse.

2. (b) The spousal election may be exercised subsequent to the spouse's death under the following circumstances:

   1. (1) The surviving spouse died before the election could be made.

   2. (2) The election is being made to recover Medicaid benefits that were paid on behalf of the deceased surviving spouse.

      The office of Medicaid policy and planning may exercise the right of election under this subsection. The spousal election is only enforceable up to the amount of Medicaid benefits that were received and the amount may only be distributed to the office of Medicaid policy and planning.

As amended by P.L.33-1989, SEC.35; P.L.252-2001, SEC.10; P.L.246-2005, SEC.213.