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The Ohio Legislature has codified many laws when it comes to a surviving spouse's rights in the probate court. These laws are intended to do a number of things, but mainly it is to protect a spouse if he/she is disinherited.
It should be noted that many of these rights have specific time frames when each right must be elected. An attorney with experience can help you walk through this process and ensure you are maximizing your benefits.
Below is an overview of the main rights a surviving spouse has during the course of estate administration.
(Please note: This post is for informational purposes only and does not constitute legal advice nor should it be considered such.)
1. ELECTION TO TAKE UNDER OR AGAINST THE WILL:
The first and perhaps greatest right a surviving spouse has is the ability to select whether he/she takes a portion of the estate under the terms of the last will and testament offered to probate, or whether he/she takes pursuant to the statute of descent and distribution.
The way the last will and testament is constructed will obviously play an important role in this decision. However, one will likely take against the will if a deceased individual tried to totally disinherit a spouse. The surviving spouse would elect to take against the will and still obtain a portion of the estate as if the decedent died without executing a will.
Example: Johnny died while separated but not divorced from his surviving spouse, Susan. He and surviving spouse had 3 kids, all Susan's biological children as well. Johnny signed a will bypassing Susan and leaving his assets to his children equally. Here, Susan could elect to take against the will and still receive 100% of the assets due to the Spousal Rights she exercises.
The amount a surviving spouse is entitled to under the statute of descent and distribution depends upon the number of children the decedent had plus the children's relationship to the surviving spouse.
2. Right to Receive the Mansion House:
Depending on the value of the family home, a surviving spouse has a right to receive the home as part of his/her portion of the inheritance and the allowance of support.
3. Right to Place a Charge on Real Estate:
If there is no will and there are insufficient assets to pay the specific monetary share due to the surviving spouse, he/she has the right to place a charge (lien) on any real property included in the probate estate in the amount of the unpaid portion of the specific monetary share.
4. Right to Receive an Allowance for Support
If one dies leaving a surviving spouse and no minor children, the surviving spouse is entitled to $40,000.00 for support and maintenance from the Estate.
If there are minor children who are not biologically the surviving spouse's, this number can be lessened by the probate court after balancing a number of factors as to what's beneficial to the minor children.
5. Right to Remain in the Mansion House
A surviving spouse has the right to remain in the family home for up to one year, rent free, from the decedent's date of death.
If the fiduciary determines it is prudent to sell the home during that one year time frame the surviving spouse can be compensated the fair market rental value for the balance of the term.
6. Right to Purchase Property
Each surviving spouse has the right to purchase assets of the probate estate at the appraised values.
7. Right to Automobiles
A surviving spouse is entitled to receive up to two automobiles, not specifically bequeathed, that would otherwise be included in the probate estate and do not exceed an aggregate value of $65,000. However, the second automobile selected may lessen the allowance for support by the fair market value of the second automobile.
8. Right to Watercraft and Outboard Motor
The surviving spouse has the right to receive one watercraft and one outboard motor, not specifically bequeathed, that would otherwise be included in the probate estate.
9. Right to Reimbursement from Funeral Expenses
A surviving spouse is entitled to a reimbursement from the estate of the decedent for funeral and burial expenses, if paid by the surviving spouse, to the extent that the rights of other creditors of the estate will not be prejudiced by the reimbursement.
10. Right to Challenge Antenuptial or Separation Agreement
You are entitled to file an action to contest the validity of an antenuptial or separation agreement should there be one present.
Joseph M. Braun is an attorney in Hamilton, Ohio. He specializes in estate planning, probate, real estate, and other general practice areas. You can connect with him by emailing: jbraun@braunlawoffice.com, calling (513) 887-4560 or liking him on Facebook