Losing a spouse is a profoundly challenging experience, often accompanied by unexpected complexities, which is why it is crucial to take adequate steps in working with an estate planner to establish comprehensive documents governing asset distribution upon your death. However, there are scenarios when a spouse may wish to leave a majority of their assets to their children or other loved ones instead of their surviving spouse. In such cases, the surviving spouse may have a preferable option known as the elective share, rather than accepting the limited assets bequeathed to them in the deceased spouse's will.

In the State of Ohio, upon the initiation of an estate, a fiduciary is appointed by the probate court. Upon the appointment of such fiduciary, the surviving spouse is informed of their right to “elect against the will” pursuant to Ohio Revised Code Chapter 2106. The "elect against the will" provision permits the surviving spouse to opt for an inheritance under Ohio law instead of adhering to the deceased spouse's will. This election must be made within five months of the estate's fiduciary appointment.

The portion of the estate the surviving spouse may elect to receive depends upon who else survives the deceased spouse:

• If the deceased spouse passed away leaving no children, the surviving spouse may elect to inherit the entire probate estate.
• If the only descendants of the deceased spouse are also descendants of the surviving spouse, the surviving spouse also may elect to take the entire estate.
• Conversely, if the deceased spouse has a child who is not the child of the surviving spouse, the surviving spouse may elect to inherit the first $20,000 of the estate plus half of the remainder of the estate, with the rest going to the deceased spouse’s child.
• In situations where the deceased spouse has multiple children who are not the children of the surviving spouse and none of the children live with the surviving spouse, the surviving spouse may elect to inherit the first $20,000 of the estate plus one-third of the balance, with the remainder going to the children. However, if one of the multiple children is a child of the surviving spouse, the surviving spouse may elect to inherit the first $60,000 of the estate as well as one-third of the balance, with the remaining share going to the children unrelated to the surviving spouse.

The elective share is complicated, but it may be the best option for the surviving spouse if they are largely disinherited from their spouse’s will. It is crucial to understand that the elective share applies solely to probate assets. Non-probate assets such as life insurance, jointly owned property with rights of survivorship, and transfer on death assets are excluded from this calculation.

Given the complexity of the elective share, it is advisable that a surviving spouse considering this option seek legal counsel. If you would like additional information regarding your estate plan or assistance in creating one, we encourage you to reach out to our Estate Planning attorneys who possess the expertise and insight to guide you through the process, ensuring your wishes are properly documented and your assets are distributed according to your preferences.