This can be a difficult and scary situation to be in. Fortunately, Ohio law does provide protections for a disinherited surviving spouse. Meeting with an experienced probate attorney is a must in this situation to timely and effectively protect your rights.
As a surviving spouse in Ohio, you have many rights provided by law. Specifically, Ohio Revised Code Chapter 2106 provides the details of rights of a surviving spouse. A brief overview of these rights is provided below. There are very specific timelines and procedures to follow, so do not delay in meeting with your attorney to make sure everything is handled properly.
First, you have the right to take under the Will or to elect against the Will in probate court. If you elect against the Will, you will be able to take one-half of the net estate, unless there are two or more children (or lineal descendants) surviving, in which case you will be able to take one-third. Importantly, the election against the Will has the effect of cutting off any bequests you would have received under the Will. So, you can take under the Will, or elect against it, but you cannot receive bequests under both. The election to take against the Will must be made in person before a judge (or magistrate) within five months of the date of the appointment of the executor or administrator.
Next, you may be entitled to an allowance for support up to $40,000. Of course, if the estate does not have enough assets, this amount may not be paid in full. Also, if there are minor children surviving (that are not also your children), then the support allowance will be apportioned accordingly. This right does not expire. Even if you subsequently pass away, your estate can assert the right to receive the allowance for support.
Third, you have the right to take up to two vehicles that are in the probate estate, provided that they are not specifically bequeathed in the Will and do not exceed $40,000 in the aggregate. The value of the vehicles taken, however, will affect the amount you may take under the allowance for support. To exercise this right, you must do so within five months of the date of appointment of the executor or administrator.
Similarly, you have the right to take one watercraft and one outboard motor, provided that they are not specifically bequeathed in the Will and are part of the probate estate. To exercise this right, you must do so within five months of the date of appointment of the executor or administrator.
Fourth, you have the right to stay in the “mansion house” (i.e. the primary residence), if the home is a part of the probate estate, for up to one year from the date of death. During this one year period of time, you would not need to pay rent to the estate. If the house is sold to pay estate debts before the year is over, then you may be able to get the fair market value of the rent for that time period. The election for these rights must be made within five months of the date of appointment of the executor or administrator. Also, depending on the value of the residence, you may be able to receive it as part of your inheritance. Importantly, these rights will only apply if the residence is a part of the probate estate.
Next, you have other more general rights. These rights include the right to be reimbursed for paying the funeral bill, the right to challenge the validity of a prenuptial agreement or separation agreement (if applicable), and the right to purchase assets out of the probate estate at the appraised values. With regard to purchasing estate assets, you must exercise this right within one month of the approval of the probate estate inventory by filing an application or petition to do so.
Finally, if there is no Will, you would also have the right to place a “charge” on the residence, if the estate did not have enough money to pay you your share, as provided by Ohio law. The charge is essentially a lien that would be placed on the residence in the amount that remain unpaid to you.
Some of the deadlines provided by Ohio law can seem way too quick, especially after losing a loved one. Let the experienced attorneys at Arenstein & Andersen Co., LPA help you gain peace of mind by explaining the probate process, your rights as a surviving spouse, and by providing you with options to help you and your family.
About Arenstein & Andersen Co., LPA
Arenstein & Andersen Co., LPA is a Dublin, Ohio law firm that provides comprehensive estate planning and probate services. Some of our legal services relating to estate planning and probate include: preparing revocable trusts, wills, powers of attorney, healthcare powers of attorney, and living wills; assisting with advanced wealth transfer strategies, including the preparation of irrevocable trusts, such as domestic asset protection trusts, charitable remainder trusts, charitable lead trusts, and life insurance trusts, along with other wealth transfer tools such as family limited partnerships; counseling clients on probate avoidance techniques to streamline and reduce the costs associated with estate administration; assisting business owners with succession and wealth transfer planning; planning for children or other loved ones with special needs to include the use of wholly discretionary trusts, supplemental services trusts, and special needs trusts to protect the beneficiary’s eligibility for public assistance benefits; advising clients on Medicaid planning and other elder care issues; representing Executors, Administrators, and Trustees with the administration of estates and trusts, including assistance with tax planning and the preparation of Federal estate tax returns, and Federal and Ohio fiduciary income tax returns; and assisting with applications for, and the administration of, guardianships for both minors and incompetents.