Rights of a Surviving Spouse in an Ohio Probate Estate

In Ohio, a surviving spouse has a variety of rights in a probate estate administration.  In other words, if a spouse has passed away and probate is required to administer some or all the estate, the surviving spouse is entitled to a litany of rights. This list is not all-encompassing:

1. Election to take under or against the Will: Subject to other circumstances, if the surviving spouse elects to take against the Will, the surviving spouse is entitled to one-half of the decedent’s net estate. 

2. Right to Receive Mansion House: Depending upon the value of real estate, the surviving spouse may have the right to receive the residence as part of the inheritance. 

3. Allowance for Support: For deaths occurring after March of 1999, the allowance for support is $40,000 of probate assets.  This amount may be subject to apportionment if there are minor children involved. 

4. Right to Remain in the Mansion House: If the residence is a probate asset, the surviving spouse has the right to live there, without having to pay rent to the estate, for one year.   

5. Right to Purchase Property: The surviving spouse has the right to purchase assets of the probate estate at the appraised values. 

6. Right to Automobiles: The surviving spouse may be entitled to receive one or more automobiles, not specifically bequeathed, that would otherwise be included in the probate estate and do not exceed an aggregate value of $65,000.  Note, this election may affect the Allowance for Support, found above. 

7. Right to Watercraft and Outboard Motor: The surviving spouse may be entitled to one watercraft, one watercraft trailer, and one outboard motor, not specifically bequeathed, that would otherwise be included in the probate estate. 

8. Right to Reimbursement of Funeral Bill: The surviving spouse may be entitled to be reimbursed, from the estate, payment for the funeral bill. 

9. Right to Challenge Antenuptial or Separation Agreement:  The surviving spouse is entitled to file an action to contest the validity of an antenuptial or separation agreement. 

Note: that these rights generally must be exercised within an appropriate window of time. 

Drafting a Will that excludes your surviving spouse can sometimes create unintended consequences down the road if probate is required.  This is often the case in second marriages, separated couples (but still legally married), or simply drafting mistakes.