In addition to any bequests made in the will, a surviving spouse has certain rights conferred by Ohio law.
A surviving spouse may select up to two vehicles owned by the deceased spouse with a combined value of up to $40,000 to transfer to herself outside of probate. These vehicles can include an automobile, motorcycle or truck (provided the truck was used for family travel). Additionally, the surviving spouse can transfer one water craft and one outboard motor.
To make the transfer, the surviving spouse must take a certified death certificate and the title of the vehicle(s) 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
If a spouse and/or minor children survive the decedent, $40,000 is set off from the estate assets 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.
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.
REMAINING IN THE MANSION HOUSE
The surviving spouse can elect to remain in the family home free of rent for one year following decedent’s death. If the house must be sold within the year to pay debts, the surviving spouse must be compensated for the unexpired term. This is also a priority claim. The interest in the mansion house includes not only use of the house, but also adjacent lots or farm as well as the household goods.
“Remaining” in the mansion house doesn’t mean the surviving spouse must actually live there. She may rent the property and retain the rents. “Remaining” also doesn’t mean that the surviving spouse, herself, must have been a resident of the house prior to the death.
ELECTION TO TAKE AGAINST THE WILL
The surviving spouse may elect to accept what she has been given under the will of the decedent or she may elect to take a share outlined by Ohio law. The “statutory share” would allow her to keep one half of the net estate unless two or more of the decedent’s children or their lineal descendants survive in which case the surviving spouse would receive 1/3 of the net estate. This is above and beyond the two vehicles or the allowance for support described above.
The surviving spouse has up to 5 months after the appointment of the fiduciary to decide. If she does not elect or ask for an extension of time to elect, she is presumed to take under the will.
If the surviving spouse dies before making an election, she is presumed to have taken under the will. If the spouse is incompetent to make an election, the court will appoint a guardian ad litem to make the election that is in her best interest. She may choose to take decedent’s interest in the mansion house as part or all of her statutory share.
When the decedent leaves no will, the state’s intestacy statute determines who receives the probate property. The surviving spouse will receive the whole estate if there are no children or their lineal descendants or if all of the decedent’s children are also hers.
If decedent had one child who is not the child of the spouse, the spouse receives $20,000 plus ½ of the balance of the net estate.
If there is more than one child, the spouse receives a specific monetary amount plus 1/3 of the balance of the net estate. If one or more of the children are hers, the monetary amount is $60,000. If the surviving spouse is not the parent of any of the decedent’s children, the monetary amount is $20,000.
The surviving spouse may elect to take the mansion house as part of her intestate share.
PURCHASE MANSION HOUSE AND OTHER PROPERTY
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 to the purchase.
ADMINISTER THE ESTATE
If no executor is named under a will, the surviving spouse has priority over all others to administer the decedent’s estate provided she is an Ohio resident.
Marta J. Williger
Elder Law Attorney