Rights Afforded to a Surviving Spouse in Ohio

Posted on: April 12, 2018
Tags: Wiils, Trusts, Estate Planning, Cincinnati, Ohio, Kentucky, Wealth Management

In addition to your will, intestate succession (the states will established for people who do not draft their own will) or other non-probate transfers, the Ohio Revised Code (Section 2106) grants special rights to a surviving spouse.  In this article I will briefly review these rights.  

First you need to be aware that a will does not automatically cover everything. No matter what your will says many of your most valuable assets will NOT be controlled by it unless you set them up that way. Joint Accounts of any kind will most likely pass to the survivor on the account. Your insurance and your Individual Retirement Accounts(IRAs) as well as qualified plans such as 401-K Plans, Employee Stock Ownership Plans (ESOPS), Profit sharing and Pension plans through your employment all have designated beneficiaries. This means that these types of assets will pass to your beneficiaries designated in the contract and not under your will.  The following are less obvious rights afforded by state law:

VEHICLES (2106.18 and 2106.19)

Prior to April 6, 2017 a surviving spouse was entitled by law and without Probate Court approval up to two vehicles, provided the value did not exceed $40,000.  Now the surviving spouse is entitled to an unlimited number of vehicles (automobile, motorcycle or truck), provided the aggregate value does not exceed $65,000.  Vehicles more than $65,000 could still be transferred by transfer on death designation at the Bureau of Motor Vehicles.  Additionally, the surviving spouse is entitled by law and without Probate Court approval of one watercraft, one watercraft trailer and one outboard motor.

To make the transfer, the surviving spouse must take a certified death certificate and the title to the title registry of the Bureau of Motor Vehicles and sign an affidavit.  Vehicles that are specifically bequeathed in the will, held jointly with right of survivorship or that have a “transfer on death” provision may not be transferred in this way.

ALLOWANCE FOR SUPPORT (2106.13)

If a spouse and/or minor children survive the decedent, then $40,000 is paid off the top to the spouse or minor children as a family allowance.  This is a priority claim.  If there are no minor children or if the minors are all children of the surviving spouse, then the entire allowance will go to the spouse.  If one or more of the minor children are not children of the surviving spouse, then the court will equitably divide the allowance for support among the surviving spouse and the minors who are not children of the spouse, according to their need.

If the surviving spouse selected one or more vehicles as specified above, the allowance for support prescribed by this section shall be reduced by the value of the vehicle having the lowest value if more than one vehicle is so selected. 

REMAINING IN THE MANSION HOUSE (2106.15)

The surviving spouse can elect to stay in the family home (including lots and farm property) rent free for no more than one year following the death of their spouse.  Surprisingly the surviving spouse does not even have to live there but can instead actually rent the property and keep the money.  If, within the first year, the home must be sold to pay debts then the surviving spouse shall be compensated by the estate for the unexpired term.   

ELECTION TO TAKE AGAINST THE WILL (2106.01)

The surviving spouse may elect to accept what was provided under the will of the decedent or may elect against the will and instead take a share provided by Ohio law.  The so called “statutory share” would allow the surviving spouse to keep a maximum of one-half or a minimum of one-third depending on the children in the marriage, if any.  If the surviving spouse dies or does not make the election within five months after the appointment of the Executor, then the spouse is presumed to have taken under the will. 

PURCHASE MANSION HOUSE AND OTHER PROPERTY (2106.10)

If the mansion house or other property is not specifically bequeathed in the will, the surviving spouse may purchase it from the estate at the appraised value. She may apply her support allowance and inheritance towards the purchase.