When a married person passes away, their surviving spouse may have legal rights to some of the Estate, regardless of what the Will says. This form of protection is known as the elective share. Understanding how the elective share works is important for both spouses and anyone creating an Estate plan. Continue reading for more information and speak with a Medina, Ohio Estate planning lawyer today.
What is an Elective Share of an Estate?
The elective share is a right granted to a surviving spouse. It is designed to prevent a deceased spouse from completely disinheriting their surviving partner through a Will or other Estate planning tools.
State laws govern the specifics of the elective share, and in Ohio, this right allows a surviving spouse to claim a portion of certain Probate assets, rather than accepting what was offered in the Will, which may be nothing. The amount is not a fixed percentage of the entire Estate and does not include most non-Probate assets.
In Ohio, the elective share generally applies to the Probate Estate and allows the surviving spouse to take up to one-third of the assets that pass to non-lineal beneficiaries (such as friends or more distant relatives). To claim this share, the surviving spouse must typically file a petition with the Probate court, electing against the Will. This legal protection ensures a surviving spouse has sufficient resources for their support.
How Much is the Elective Share in Ohio?
In Ohio, the elective share is not determined by the number of children or lineal descendants. Instead, it is based on the value of the Probate Estate and the nature of the beneficiaries receiving assets under the will.
If the deceased spouse leaves assets to individuals who are not lineal descendants (such as friends or extended family), the surviving spouse may elect to receive up to one-third of those probate assets.
However, if the deceased spouse leaves assets only to their children or other lineal descendants, the elective share generally does not apply to those assets. In that case, the surviving spouse is typically limited to what they were left in the Will and any other statutory rights, rather than taking a one-third share from the children’s inheritance.
In situations where the Will distributes assets to both lineal descendants and non-lineal beneficiaries, the surviving spouse may elect to receive up to one-third of the portion passing to the non-lineal beneficiaries only.
The elective share generally applies only to Probate assets, meaning property that passes through the Estate administration process after debts and expenses are paid. It does not typically include non-Probate assets such as life insurance policies, retirement accounts with designated beneficiaries, or jointly owned property with rights of survivorship.
If the deceased spouse is not survived by any children or their lineal descendants, the surviving spouse is entitled to the entire net estate under Ohio’s intestacy laws, but this applies only when there is no valid Will. The “net Estate” generally includes Probate assets after debts and funeral expenses are paid. However, when a valid Will exists and leaves assets to friends or other non-lineal beneficiaries, the spouse may instead elect to receive up to one-third of the applicable Probate assets.
Estate law can be complex, so consult with a qualified estate planning attorney for help in accurately determining the calculation and process.
