Rights of Surviving Spouses in Ohio
By Bernadette A. Safrath
Updated July 20, 2017
In Ohio, a surviving spouse is generally the first to inherit a deceased's estate. That estate consists of all the property a person acquired during his life. The property can pass according to the deceased's will, by nature of ownership, or through intestacy if there was no will.
The first property a surviving spouse is entitled to inherit is jointly owned property. Jointly owned property, which usually includes bank accounts and the marital residence, automatically passes to the other joint owner, the surviving spouse. This is because joint property is held with a right of survivorship, which means inheritance is automatic and the deceased cannot name a different beneficiary in his will.
A person who dies without a will dies intestate. His property passes under Ohio's intestacy law, set forth in Ohio Revised Code (ORC) 2105.06. The surviving spouse is the first eligible beneficiary to inherit. She will receive the entire estate if there are no children or if the deceased's children are also the spouse's children. This is because the law assumes those children will have the opportunity to inherit from the surviving spouse's estate later on. However, if the deceased is survived by other children, the surviving spouse will inherit $20,000 plus half of the estate, with the children inheriting the balance.
ORC 2107.02 requires that a person making a will, a testator, be at least 18 years old and mentally competent. The testator must be making the will voluntarily, without undue influence, and the will must be in writing. The testator must sign the will in front of two witnesses, who must also sign. The witnesses cannot be named beneficiaries and any will provision leaving property to a witness, including the surviving spouse, is void. The testator can leave his estate to anyone, but should leave at least a percentage to his spouse. If he does not, the spouse can still claim an inheritance. In order to inherit, the spouse must be married to the decedent at the time of his death. A divorce nullifies any bequest to a former spouse even if the will is never updated.
When a spouse is disinherited, Ohio law permits him to request an elective share from the court. The spouse must file with the probate court no more than five months after the will is submitted and an executor is appointed. If the court finds the spouse was left a nominal inheritance or nothing at all, it will award her intestate share, either all or half of the estate.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.