Chapter 2106: RIGHTS OF SURVIVING SPOUSES

2106.01 Election by surviving spouse.

(A) After the initial appointment of an administrator or executor of the estate, the probate court shall issue a citation to the surviving spouse, if any is living at the time of the issuance of the citation, to elect whether to exercise the surviving spouse's rights under Chapter 2106. of the Revised Code, including, after the probate of a will, the right to elect to take under the will or under section 2105.06 of the Revised Code.

A surviving spouse may waive the service of the citation required under this division by filing in the probate court a written waiver of the citation. The waiver shall include an acknowledgment of receipt of the description of the general rights of the surviving spouse required by division (B) of section 2106.02 of the Revised Code.

(B) If the surviving spouse elects to take under section 2105.06 of the Revised Code and if the value of the property that the surviving spouse is entitled to receive is equal to or greater than the value of the decedent's interest in the mansion house as determined under section 2106.10 of the Revised Code, the surviving spouse also is entitled to make an election pursuant to division (A) of section 2106.10 of the Revised Code.

(C) If the surviving spouse elects to take under section 2105.06 of the Revised Code, the surviving spouse shall take not to exceed one-half of the net estate, unless two or more of the decedent's children or their lineal descendants survive, in which case the surviving spouse shall take not to exceed one-third of the net estate.

For purposes of this division, the net estate shall be determined before payment of federal estate tax, estate taxes under Chapter 5731. of the Revised Code, or any other tax that is subject to apportionment under section 2113.86 or 2113.861 of the Revised Code.

(D) Unless the will expressly provides that in case of an election under division (A) of this section there shall be no acceleration of remainder or other interests bequeathed or devised by the will, the balance of the net estate shall be disposed of as though the surviving spouse had predeceased the testator. If there is a disposition by a will to an inter vivos trust that was created by the testator, if under the terms of the trust the surviving spouse is entitled to any interest in the trust or is granted any power or nomination with respect to the trust, and if the surviving spouse makes an election to take under section 2105.06 of the Revised Code, then, unless the trust instrument provides otherwise, the surviving spouse is considered for purposes of the trust to have predeceased the testator, and there shall be an acceleration of remainder or other interests in all property bequeathed or devised to the trust by the will, in all property held by the trustee at the time of the death of the decedent, and in all property that comes into the possession or under the control of the trustee by reason of the death of the decedent.

(E) The election of a surviving spouse to take under a will or under section 2105.06 of the Revised Code may be made at any time after the death of the decedent, but the surviving spouse shall not make the election later than five months from the date of the initial appointment of an administrator or executor of the estate. On a motion filed before the expiration of the five-month period, and for good cause shown, the court may allow further time for the making of the election. If no action is taken by the surviving spouse before the expiration of the five-month period, it is conclusively presumed that the surviving spouse elects to take under the will. The election shall be entered on the journal of the court.

When proceedings for advice or to contest the validity of a will are begun within the time allowed by this division for making the election, the election may be made within three months after the final disposition of the proceedings, if the will is not set aside.

(F) When a surviving spouse succeeds to the entire estate of the testator, having been named the sole devisee and legatee, it shall be presumed that the spouse elects to take under the will of the testator, unless the surviving spouse manifests a contrary intention.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 04-08-2004

2106.02 Citation to make election.

(A) The citation to make the election referred to in section 2106.01 of the Revised Code shall be served on the surviving spouse pursuant to Civil Rule 73. Notice that the citation has been issued by the court shall be given to the administrator or executor of the estate of the deceased spouse.

(B) The citation shall be accompanied by a general description of the effect of the election to take under the will or under section 2105.06 of the Revised Code and the general rights of the surviving spouse under Chapter 2106. of the Revised Code. The description shall include a specific reference to the procedures available to the surviving spouse under section 2106.03 of the Revised Code and to the presumption that arises if the surviving spouse does not make the election in accordance with division (E) of section 2106.01 of the Revised Code. The description of the general rights of the surviving spouse under Chapter 2106. of the Revised Code shall include a specific reference to the presumption that arises if the surviving spouse does not exercise the rights under Chapter 2106. of the Revised Code within the time period specified by section 2106.25 of the Revised Code. The description of the effect of the election and of the general rights of the surviving spouse need not relate to the nature of any particular estate.

(C) A surviving spouse electing to take under the will may manifest the election in writing within the times described in division (E) of section 2106.01 of the Revised Code.

Effective Date: 04-08-2004

2106.03 Complaint - construction of will.

Within the times described in division (E) of section 2106.01 of the Revised Code for making an election, the surviving spouse may file a complaint in the probate court making all persons interested in the will defendants, that requests a construction of the will in favor of the surviving spouse and for the court to render a judgment to that effect.

Effective Date: 05-31-1990

2106.04 Failure to make election - presumption.

If the surviving spouse dies before probate of the will, or, having survived the probate, thereafter either fails to make the election provided by section 2106.01 of the Revised Code or dies without having made an election within the times described in division (E) of that section, the surviving spouse shall be conclusively presumed to have elected to take under the will, and the surviving spouse and the heirs, devisees, and legatees of the surviving spouse, and those claiming through or under them, shall be bound by the conclusive presumption, and persons may deal with the property of the decedent accordingly; provided that, if applicable, the provisions of sections 2105.31 to 2105.39 of the Revised Code shall prevail over the provisions relating to the right of election of a surviving spouse.

Effective Date: 05-16-2002

2106.05 Election to take under the will - effect.

If a surviving spouse elects to take under the will, the surviving spouse shall be barred of all right to an intestate share of the property passing under the will and shall take under the will alone, unless it plainly appears from the will that the provision for the surviving spouse was intended to be in addition to an intestate share. An election to take under the will does not bar the right of the surviving spouse to an intestate share of that portion of the estate as to which the decedent dies intestate. Unless the will expressly otherwise directs, an election to take under the will does not bar the right of the surviving spouse to remain in the mansion house, and does not bar the right of the surviving spouse to receive the allowance for the support provided by section 2106.13 of the Revised Code.

Effective Date: 05-31-1990

2106.06 Election made in person.

The election of a surviving spouse to take under section 2105.06 of the Revised Code and thereby refusing to take under the will shall be made in person before the probate judge, or a deputy clerk who has been appointed to act as a referee, except as provided in sections 2106.07 and 2106.08 of the Revised Code.

When the election is made in person before the judge or referee, the judge or referee shall explain the will, the rights under the will, and the rights, by law, in the event of a refusal to take under the will.

Effective Date: 05-31-1990

2106.07 Commission issued to take election of spouse.

Upon the filing of an application on behalf of a surviving spouse, the probate court may issue a commission, with a copy of the will annexed, directed to any suitable person, to take the election of the surviving spouse as described in section 2106.01 of the Revised Code. In the commission, the court shall direct the suitable person to explain the rights of the surviving spouse under the will and under Chapter 2105. of the Revised Code.

Effective Date: 05-31-1990

2106.08 Election made by one under legal disability.

If, because of a legal disability, a surviving spouse is unable to make an election as provided by section 2106.01 of the Revised Code, as soon as the facts come to the knowledge of the probate court, the probate court shall appoint some suitable person to ascertain the value of the provision made for the surviving spouse by the testator, the value of the rights of the surviving spouse in the estate of the testator under Chapter 2105. of the Revised Code, and the adequate support needs of the surviving spouse after taking into consideration the other available resources and the age, probable life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the surviving spouse. The appointment by the court shall be made at any time within the times described in division (E) of section 2106.01 of the Revised Code for making an election under that section.

When the person so appointed returns the report of the person's investigation, the court may elect for the surviving spouse to take under section 2105.06 of the Revised Code only if it finds, after taking into consideration the other available resources and the age, probable life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the surviving spouse, that the election to take under section 2105.06 of the Revised Code is necessary to provide adequate support for the surviving spouse during the surviving spouse's life expectancy.

After making its determination under this section, the court shall record upon its journal the election made for the surviving spouse. The election, when so entered, shall have the same effect as an election made by one not under legal disability.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 05-31-1990

2106.10 Election to receive mansion house.

(A) A surviving spouse may elect to receive, as part of the surviving spouse's share of an intestate estate under section 2105.06 of the Revised Code and the allowance for support under section 2106.13 of the Revised Code, the entire interest of the decedent spouse in the mansion house. The interest of the decedent spouse in the mansion house shall be valued at the appraised value with the deduction of that portion of all liens on the mansion house existing at the time of death and attributable to the decedent's interest in the mansion house.

(B) The election pursuant to division (A) of this section shall be made at or before the time a final account is rendered.

(C) If the spouse makes an election pursuant to division (A) of this section, the administrator or executor shall file, unless the election is one made under division (D) of this section, an application for a certificate of transfer as provided for in section 2113.61 of the Revised Code. The application also shall contain an inventory of the property and the allowance for support that the spouse is entitled to receive under sections 2105.06 and 2106.13 of the Revised Code. If the value of the property and the allowance for support that the spouse is entitled to receive is equal to or greater than the value of the decedent's interest in the mansion house, the court shall issue the certificate of transfer.

(D) The surviving spouse may make an election pursuant to division (A) of this section in an estate relieved from administration under section 2113.03 of the Revised Code or in an estate that is subject to an order granting a summary release from administration under section 2113.031 of the Revised Code. The election shall be made at the time of or prior to the entry of the order relieving the estate from administration or the order granting a summary release from administration. Either the surviving spouse or the applicant for the order shall file the application for the certificate of transfer under division (C) of this section.

(E) If the surviving spouse dies prior to making an election pursuant to division (A) of this section, the surviving spouse shall be conclusively presumed not to have made an election pursuant to that division. After the surviving spouse's death, no other person is authorized to make an election pursuant to that division on behalf of the estate of the surviving spouse.

(F) As used in this section, the mansion house includes the decedent's title in the parcel of land on which the house is situated and, at the option of the surviving spouse, the decedent's title in the household goods contained within the house and the lots or farmland adjacent to the house and used in conjunction with it as the home of the decedent.

Effective Date: 08-29-2000

2106.11 Specific monetary share payable to a surviving spouse.

Subject to the right of the surviving spouse to elect to receive the decedent's interest in the mansion house pursuant to section 2106.10 of the Revised Code, the specific monetary share payable to a surviving spouse under division (B), (C), or (D) of section 2105.06 of the Revised Code shall be paid out of the tangible and intangible personal property in the intestate estate to the extent that the personal property is available for distribution. The personal property distributed to the surviving spouse, other than cash, shall be valued at the appraised value.

Before tangible and intangible personal property is transferred to the surviving spouse in payment or part payment of the specific monetary share, the administrator or executor shall file an application that includes an inventory of the personal property intended to be distributed in kind to the surviving spouse, together with a statement of the appraised value of each item of personal property included. The court shall examine the application and make a finding of the amount of personal property to be distributed to the surviving spouse, and shall order that the personal property be distributed to the surviving spouse. The court concurrently shall make a finding of the amount of money that remains due and payable to the surviving spouse in satisfaction of the specific monetary share to which the surviving spouse is entitled under division (B), (C), or (D) of section 2105.06 of the Revised Code. Any amount that remains due and payable shall be a charge on the title to any real property in the estate but the charge does not bear interest. This charge may be conveyed or released in the same manner as any other interest in real property and may be enforced by foreclosure or any other appropriate remedy.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 03-22-2001

2106.13 Allowance for support.

(A) If a person dies leaving a surviving spouse and no minor children, leaving a surviving spouse and minor children, or leaving minor children and no surviving spouse, the surviving spouse, minor children, or both shall be entitled to receive, subject to division (B) of this section, in money or property the sum of forty thousand dollars as an allowance for support. If the surviving spouse selected two automobiles under section 2106.18 of the Revised Code, the allowance for support prescribed by this section shall be reduced by the value of the automobile having the lower value of the two automobiles so selected. The money or property set off as an allowance for support shall be considered estate assets.

(B) The probate court shall order the distribution of the allowance for support described in division (A) of this section as follows:

(1) If the person died leaving a surviving spouse and no minor children, one hundred per cent to the surviving spouse;

(2) If the person died leaving a surviving spouse and minor children, and if all of the minor children are the children of the surviving spouse, one hundred per cent to the surviving spouse;

(3) If the person died leaving a surviving spouse and minor children, and if not all of the minor children are children of the surviving spouse, in equitable shares, as fixed by the probate court in accordance with this division, to the surviving spouse and the minor children who are not the children of the surviving spouse. In determining equitable shares under this division, the probate court shall do all of the following:

(a) Consider the respective needs of the surviving spouse, the minor children who are children of the surviving spouse, and the minor children who are not children of the surviving spouse;

(b) Allocate to the surviving spouse, the share that is equitable in light of the needs of the surviving spouse and the minor children who are children of the surviving spouse;

(c) Allocate to the minor children who are not children of the surviving spouse, the share that is equitable in light of the needs of those minor children.

(4) If the person died leaving minor children and no surviving spouse, in equitable shares, as fixed by the probate court in accordance with this division, to the minor children. In determining equitable shares under this division, the probate court shall consider the respective needs of the minor children and allocate to each minor child the share that is equitable in light of the child's needs.

(C) If the surviving spouse selected two automobiles under section 2106.18 of the Revised Code, the probate court, in considering the respective needs of the surviving spouse and the minor children when allocating an allowance for support under division (B)(3) of this section, shall consider the benefit derived by the surviving spouse from the transfer of the automobile having the lower value of the two automobiles so selected.

(D) If, pursuant to this section, the probate court must allocate the allowance for support, the administrator or executor, within five months of the initial appointment of an administrator or executor, shall file with the probate court an application to allocate the allowance for support.

(E) The administrator or executor shall pay the allowance for support unless a competent adult or a guardian with the consent of the court having jurisdiction over the guardianship waives the allowance for support to which the adult or the ward represented by the guardian is entitled.

(F) For the purposes of this section, the value of an automobile that a surviving spouse selects pursuant to section 2106.18 of the Revised Code is the value that the surviving spouse specifies for the automobile in the affidavit executed pursuant to division (B) of section 4505.10 of the Revised Code.

Effective Date: 10-31-2001

2106.15 Mansion house.

A surviving spouse may remain in the mansion house free of charge for one year, except that such real property may be sold within that time for the payment of debts of the decedent. If the real property is so sold, the surviving spouse shall be compensated from the estate to the extent of the fair rental value for the unexpired term, such compensation to have the same priority in payment of debts of estates as the allowance for support made to the surviving spouse, minor children, or surviving spouse and minor children of the decedent under section 2106.13 of the Revised Code.

Effective Date: 05-31-1990

2106.16 Purchase of property by surviving spouse.

A surviving spouse, even though acting as executor or administrator, may purchase the following property, if left by the decedent, and if not specifically devised or bequeathed:

(A) The decedent's interest in the mansion house, including the decedent's title in the parcel of land on which the mansion house is situated and lots or farm land adjacent to the mansion house and used in conjunction with it as the home of the decedent, and the decedent's title in the household goods contained in the mansion house, at the appraised value as fixed by the appraisers;

(B) Except for any automobile that passes to the surviving spouse of the decedent under division (A) of section 2106.18 of the Revised Code, any other real or personal property of the decedent not exceeding, with the decedent's interest in the mansion house and the decedent's title in the land used in conjunction with it, and the decedent's title in the household goods the spouse elects to purchase, one-third of the gross appraised value of the estate, at the appraised value as fixed by the appraisers.

A spouse desiring to exercise this right of purchase with respect to personal property shall file in the probate court an application setting forth an accurate description of the personal property and the election of the spouse to purchase it at the appraised value. No notice is required for the court to hear the application insofar as it pertains to household goods contained in the mansion house. If the application includes other personal property, the court shall cause a notice of the time and place of the hearing of the application with respect to the other personal property to be given to the executor or administrator, the heirs or beneficiaries interested in the estate, and to any other interested persons as the court determines.

A spouse desiring to exercise this right of purchase with respect to an interest in real property shall file in the court a petition containing an accurate description of the real property and naming as defendants the executor or administrator, the persons to whom the real property passes by inheritance or residuary devise, and all mortgagees and other lienholders whose claims affect the real property or any part of it. Spouses of defendants need not be made defendants. The petition shall set forth the election of the surviving spouse to purchase the interest in real property at the appraised value and shall contain a prayer accordingly. A summons upon that petition shall be issued and served on the defendants in the same manner as provided for service of summons in actions to sell real property to pay debts.

No hearing on the application or petition shall be held until the inventory is approved. On the hearing of the application or petition, the finding of the court shall be in favor of the surviving spouse, unless it appears that the appraisement was made as a result of collusion or fraud or that it is so manifestly inadequate that a sale at that price would unconscionably prejudice the rights of the parties in interest or creditors. The action of the court shall not be held to prejudice the rights of lienholders.

Upon a finding in favor of the surviving spouse, the court shall make an entry fixing the terms of payment to the executor or administrator for the property, having regard for the rights of creditors of the estate, and ordering the executor or administrator, or a commissioner who may be appointed and authorized for the purpose, to transfer and convey the property to the spouse upon compliance with the terms fixed by the court. If the court, having regard for the amount of property to be purchased, its appraised value, and the distribution to be made of the proceeds arising from the sale, finds that the original bond given by the executor or administrator is sufficient, the court may dispense with the giving of additional bonds. If the court finds that the original bond is insufficient, as a condition to transfer and conveyance, the court shall require the executor or administrator to execute an additional bond in an amount as the court may fix, with proper surety, conditioned and payable as provided in section 2127.27 of the Revised Code. This section does not prevent the court from ordering transfer and conveyance without bond in cases where the will of a testator provides that the executor need not give bond. The executor or administrator, or a commissioner, then shall execute and deliver to the surviving spouse a proper bill of sale or deed, as the case may be, for the property, and shall make a return to the court.

The death of the surviving spouse prior to the filing of the court's entry fixing the terms of payment for property elected to be purchased shall nullify the election. The real or personal property then shall be free of the right granted in this section.

The application or petition provided for in this section shall not be filed prior to filing the inventory required by section 2115.02 of the Revised Code or later than one month after the approval of that inventory. Failure to file an application or petition within that time nullifies the election with respect to the property required to be included, and the real or personal property then shall be free of the right granted in this section.

Effective Date: 03-11-1996

2106.17 Renumbered RC 2131.12.

Effective Date: 07-23-2002

2106.18 Transfer of automobile titles.

(A) Upon the death of a married resident who owned at least one automobile at the time of death, the interest of the deceased spouse in up to two automobiles that are not transferred to the surviving spouse due to joint ownership with right of survivorship established under section 2131.12 of the Revised Code, that are not transferred to a transfer-on-death beneficiary or beneficiaries designated under section 2131.13 of the Revised Code, and that are not otherwise specifically disposed of by testamentary disposition may be selected by the surviving spouse. This interest shall immediately pass to the surviving spouse upon transfer of the title or titles in accordance with section 4505.10 of the Revised Code. The sum total of the values of the automobiles selected by a surviving spouse under this division, as specified in the affidavit that the surviving spouse executes pursuant to division (B) of section 4505.10 of the Revised Code, shall not exceed forty thousand dollars. Each automobile that passes to a surviving spouse under this division shall not be considered an estate asset and shall not be included in the estate inventory.

(B) The executor or administrator, with the approval of the probate court, may transfer title to an automobile owned by the decedent to any of the following:

(1) The surviving spouse, when the automobile is purchased by the surviving spouse pursuant to section 2106.16 of the Revised Code;

(2) A distributee;

(3) A purchaser.

(C) The executor or administrator may transfer title to an automobile owned by the decedent without the approval of the probate court to any of the following:

(1) A legatee entitled to the automobile under the terms of the will;

(2) A distributee if the distribution of the automobile is made without court order pursuant to section 2113.55 of the Revised Code;

(3) A purchaser if the sale of the automobile is made pursuant to section 2113.39 of the Revised Code.

(D) As used in division (A) of this section, "automobile" includes a motorcycle and includes a truck if the truck was used as a method of conveyance by the deceased spouse or the deceased spouse's family when the deceased spouse was alive.

Effective Date: 07-23-2002; 03-29-2006

2106.19 Transfer of title to watercraft or outboard motor.

(A) Upon the death of a married resident who owned at least one watercraft, one outboard motor, or one of each at the time of death, the interest of the deceased spouse in one watercraft, one outboard motor, or one of each that is not otherwise specifically disposed of by testamentary disposition and that is selected by the surviving spouse immediately shall pass to the surviving spouse upon receipt by the clerk of the court of common pleas of both of the following:

(1) The title executed by the surviving spouse;

(2) An affidavit sworn by the surviving spouse stating the date of the decedent's death, a description of the watercraft, outboard motor, or both, its or their approximate value, and that the watercraft, outboard motor, or both are not disposed of by testamentary disposition.

The watercraft, outboard motor, or both shall not be considered an estate asset and shall not be included and stated in the estate inventory.

Transfer of a decedent's interest under this division does not affect the existence of any lien against a watercraft or outboard motor so transferred.

(B) Except for a watercraft, outboard motor, or both transferred as provided in division (A) of this section, the executor or administrator may transfer title to a watercraft or outboard motor in the manner provided for transfer of an automobile under divisions (B) and (C) of section 2106.18 of the Revised Code.

Effective Date: 10-20-1994

2106.20 Reimbursement for funeral expenses.

A surviving spouse or a person with the right of disposition under section 2108.70 or 2108.81 of the Revised Code is entitled to a reimbursement from the estate of the decedent for funeral and burial expenses, if paid by the surviving spouse or person with the right of disposition, to the extent that the rights of other creditors of the estate will not be prejudiced by the reimbursement.

Effective Date: 05-31-1990; 10-12-2006

2106.22 Action to set aside antenuptial or separation agreement.

Any antenuptial or separation agreement to which a decedent was a party is valid unless an action to set it aside is commenced within four months after the appointment of the executor or administrator of the estate of the decedent, or unless, within the four-month period, the validity of the agreement otherwise is attacked.

Effective Date: 05-31-1990

2106.24 Additional rights of surviving spouse.

In addition to the rights provided in this chapter, a surviving spouse of a decedent who died testate or intestate is entitled to any other rights prescribed in other chapters of the Revised Code, including, but not limited to, any dower rights under Chapters 2103. and 5305. of the Revised Code.

Effective Date: 05-31-1990

2106.25 Time limit for exercising rights - motion for extension.

Unless otherwise specified by a provision of the Revised Code or this section, a surviving spouse shall exercise all rights under Chapter 2106. of the Revised Code within five months of the initial appointment of an executor or administrator of the estate. It is conclusively presumed that a surviving spouse has waived any right not exercised within that five-month period or within any longer period of time allowed by the court pursuant to this section. Upon the filing of a motion to extend the time for exercising a right under Chapter 2106. of the Revised Code and for good cause shown, the court may allow further time for exercising the right that is the subject of the motion.

Effective Date: 10-31-2001