A spouse’s death is can often create a great deal of anxiety and stress for the surviving spouse. Often, the surviving spouse not only has to endure the sadness and mourning, but also questions such as: How will my spouse’s debts be paid? Will I be able to stay in our home? What does my financial picture look like? Many of these issues may have been planned through an appropriate Last Will and Testament, Trust, and/or other estate planning instruments.
The purpose of this article is to discuss those rights conferred by Ohio law upon a surviving spouse. Chapter 2106 of the Ohio Revised Code details the vast majority of these rights, and readers are encouraged and recommended to seek assistance through their own attorney in determining what rights are available and how to pursue these rights. Attorney Shaun A. Putman is equipped and ready to handle any such concerns, and welcomes an appointment to discuss the same.
- RIGHTS WHEN A DECEASED SPOUSE DIES WITH A LAST WILL AND TESTAMENT
LAST WILL AND TESTAMENT V. STATUTORY SHARE
When a spouse dies with a valid Last Will and Testament, the surviving spouse may make one (1) of two (2) elections:
A) The surviving spouse may elect to accept what he/she has been given under the deceased spouse’s Last Will and Testament; or
B) The surviving spouse may, within five (5) months after the Probate Court appoints a fiduciary for the estate, elect against the Last Will and Testament. If the surviving spouse elects against the Last Will and Testament, he/she will receive:
1) One (1) or two (2) vehicles (see below under the heading “Vehicles”), and
2) An allowance for support (see below under the heading “Financial Support”); and
3) The “statutory share”. This generally allows the surviving spouse to keep one-half (1/2) of the net estate. However, if two (2) two or more of the deceased spouse’s children (or their lineal descendants) survive the deceased spouse, then the surviving spouse would receive one-third (1/3) of the net estate.
Regardless of the choices detailed directly above, Ohio law dictates that $40,000.00 is set aside from the assets of an estate if the deceased died leaving a surviving spouse and/or minor children. This is commonly known as a “spousal allowance” or “family allowance”, and is considered a priority claim. This simply means that this claim will be considered before most other claims. In the event the minor children are also children of the surviving spouse, the entire $40,000.00 will be received by the surviving spouse. Likewise, if there are no minor children, the entire $40,000.00 will go to the surviving spouse. The surviving spouse may elect to receive part or all of the decedent’s interest in the mansion house as part of her allowance for support.
If, on the other hand, one or more of the deceased’s minor children are not children of the surviving spouse, then the Probate Court will equitably divide the allowance between the surviving spouse and the minors who are not children of the spouse.
A surviving spouse may elect to receive one (1) or even two (2) of the deceased spouse’s vehicle(s), so long as the combined value does not exceed $40,000. The term “vehicle” is loosely defined to include cars, motorcycles, and non-commercial trucks. Additionally, a surviving spouse can receive one water craft and one outboard motor. Often, these vehicles can be transferred to the surviving spouse outside of Probate Court and with minimal expense or hassle.
The surviving spouse can elect to remain, rent free, in the deceased spouse’s home (called the “Mansion House” in Ohio law) for one (1) year following deceased spouse’s death. The surviving spouse can also move into this home for that one (1) year period of he/she did not reside there when the deceased spouse died. If the house must be sold within the year to pay debts, the surviving spouse must be paid for the unexpired portion of that one (1) year term. This right includes use of the household goods as well.
2. RIGHTS WHEN A DECEASED SPOUSE DIES WITHOUT A LAST WILL AND TESTAMENT
When the deceased spouse did not have a Last Will and Testament, Ohio’s intestacy statute will dictate how this spouse’s probate assets are distributed. A surviving spouse will receive the entire estate if there are no children (or their lineal descendants) or if all of the decedent’s children are also the children of the surviving spouse.
If deceased spouse had one (1) child, and that child is not the child of the surviving spouse, the surviving spouse is entitled to receive $20,000.00 plus one-half (1/2) of the balance of the net estate.
If the deceased spouse left more than one (1) child from other relationships, then the surviving spouse receives $20,000.00 plus one-third (1/3) of the balance of the net estate.
Lastly, if the deceased spouse left more than one (1) child, but one (1) or more of these children are also the child(ren) of the surviving spouse, then the surviving spouse is entitle to receive $60,000.00 plus one-third (1/3) of the balance of the net estate.
The surviving spouse may elect to take the deceased spouse’s home as part of his/her share.
3. OTHER RIGHTS FOR A SURVIVING SPOUSE
PURCHASING THE HOME AND OTHER PROPERTY
If the deceased spouse does not specifically leave anyone their home or other personal property in their Last Will and Testament, then the surviving spouse may purchase any such item from the estate at the appraised value. The surviving spouse may apply his/her support allowance to such a purchase.
ADMINISTER THE ESTATE
If the deceased spouse does not name a fiduciary/executor in their Last Will and Testament, and the surviving spouse is a resident of Ohio, the surviving spouse will have priority over any one else to administer the deceased spouse’s estate.