Ohio law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
What if a Spouse Dies Without a Will?
- INTESTATE. When an individual dies without a will, intestate succession law will govern. Under Ohio law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
- INTESTATE SHARE. If a spouse dies without a Will, the surviving spouse receives an intestate share.
- SHARE OF SURVIVING SPOUSE – NO CHILDREN. If the only survivor is a surviving spouse then the surviving spouse receives the entire intestate estate of the decedent. See Ohio Rev. Code Ann. § 2105.06(b).
- SHARE OF SURVIVING SPOUSE – ONE CHILD OR MORE WHO IS NOT THE CHILD OF THE SURVIVING SPOUSE. If the decedent had one child who is not the child of the surviving spouse, the surviving spouse receives the first $20,000 plus one-half of the balance of the net estate. See Ohio Rev. Code Ann. § 2105.06(c).
- SHARE OF SURVIVING SPOUSE – MORE THAN ONE CHILD. If the decedent had more than one child, and not all of the children are the natural or adoptive children of the surviving spouse, the surviving spouse receives the first $60,000 plus one-third of the balance of the net estate. If the surviving spouse is not the natural or adoptive parents to the children, he or she is entitled to the first $20,000 plus one-third of the balance of the net estate. See Ohio Rev. Code Ann. § 2105.06(d).
Election To Take Under or Against a Will
- ELECTIVE SHARE.
– Less than two children. If the surviving spouse elects to take against the Will and the decedent is survived by less than two children, or the children’s lineal descendants, the surviving spouse is entitled to take one-half of the decedent’s estate.
– Two or more children. If the surviving spouse elects to take against the Will and the decedent is survived by two or more children, or the children’s lineal descendants, the surviving spouse is entitled to take one-third of the decedent’s estate.
- Provisions made under the Will. If the surviving spouse elects the elective share, he or she will not be entitled to receive any assets given to him or her under the will.
- ELECTION. An election to take under the will may be made in writing, but the election may also be made by taking no action. Conversely, if the surviving spouse elects to take against the will, he or she must before the Probate Judge or a Magistrate. This election must be exercised within five months from the date of the initial appointment of the administrator or executor of the estate or it is forfeited.
Right to Receive/Remain in Mansion House
- Under Ohio law, the residence of shared by the surviving spouse and the decedent is referred to as the “mansion house.” Depending upon the value of the real estate, the surviving spouse may have the right to receive the mansion house as part of the inheritance. See Ohio Rev. Code Ann. § 2106.10.
- If the mansion house is a probate asset, the surviving spouse has the right to remain in the mansion house for a period of one year from the date of the decedent’s death without the payment of rent to the estate. If the mansion house is sold to pay debts during this period of time, you may be entitled to the fair rental value of the mansion house.
– Timeline for Election: This election must be exercised within five months from the initial appointment of the administrator or executor or the right is forfeited.
Allowance for Support
A surviving spouse may be entitled for an allowance for support. See Ohio Rev. Code Ann. § 2106.13. The allowance for support amount is $40,000 in money or property. If there are one or more minor children of the decedent, not the children of the surviving spouse, this Court will apportion the allowance among those children and the surviving spouse. Please note that the surviving spouse is entitled to receive up to two selected automobiles. The allowance for support amount will be set off against this election for automobiles, if made.
Effect of Subsequent Marriage?
A will executed by an unmarried person is not revoked by a subsequent marriage. See Ohio Rev. Code Ann. § 2107.7.
Social Security Death Benefit
- SOCIAL SECURITY DEATH BENEFIT. Applying for a Social Security lump sum death benefit (currently $255) must be filed within 2 years of the date of death.
- SOCIAL SECURITY BENEFITS FOR A SURVIVING SPOUSE. It is also important to ensure you receive any and all payments you may be entitled to as a surviving spouse from Social Security.
- MARITAL AGREEMENTS. The surviving spouse is entitled to file an action to contest the validity of an antenuptial or separation agreement.
- TIMELINE TO FILE CHALLENGE. This action must be filed within four months after the appointment of the executor or administrator or the right is forfeited.
Requirement to File Known Will
- If the surviving spouse, or any other beneficiary, named in a will knows of the existence of the will for one year after the death of the testator and has the power to control it, and without reasonable cause, intentionally conceals, withholds, neglects, or refuses within that year to offer the will to probate, the beneficiary shall not receive property or rights passing under the will or via intestacy. See Ohio Rev. Code Ann. § 2107.10.
- Deposit of Will During Testator’s Lifetime. Pursuant to Ohio Rev. Code Ann. § 2107.07, a will may be deposited by the testator, or by some person for the testator, in the office of the judge of the probate court in the county in which the testator lives. The fee for the deposit of the will is $5.00.
What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?
- Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.