Disinheriting a Spouse? The Elective Share Under Ohio Law

Posted in Wills & Estates. Tuesday, Nov 17th, 2015

Historically, the law has been quite concerned with ensuring that people who survive the death of a spouse are well taken care of. Originally, the issue of supporting a widow or widower was solved through the twin legal doctrines of dower and curtesy. These two doctrines referred to the share that a surviving wife or husband, respectively, could take. However, these doctrines were complex, and provided different rights to men and women, so they have since been modernized into a concept known as the elective share.

How the Elective Share Works

The elective share, also referred to as omitted spouse’s rights, is the right of a spouse under Ohio law to reject whatever share they were given in a will. Instead, they elect to take the share that they would receive if their husband or wife had died without leaving a will behind. Exactly what that share is depends upon the family structure at the time of the spouse’s death.

If there are no children, then the whole of the estate passes to the surviving spouse. If there are living children, then the question becomes whether they are children of both the decedent and the surviving spouse. If the only children are the children of both the surviving spouse and the decedent, then the whole estate goes to the spouse. If some or all of the children are children of the decedent but not of the surviving spouse, then the estate is divided among the spouse and those children with the exact amount depending on the number of children.

The Purpose of the Elective Share

As mentioned above, the purpose of this doctrine is to make it difficult to disinherit a spouse and to ensure that they are well taken care of in the event that the decedent was supporting them. The reasons for this are twofold, one compassionate and the other practical. The compassionate reason was a desire to see people kept living comfortably in their old age. The practical concern was that the disinherited spouses often ended up being supported by the community, which the government sought to avoid, if the estate had enough money.

What Happens to the Other Beneficiaries

Of course, none of this happens in a vacuum and there are often other beneficiaries to the will who will be affected by a spouse’s decision to take more than was given to them in the will. In those cases, other gifts in the will will “adeem” in order to pay the surviving spouse who is taking the elective share. Ademption is the legal process by which gifts in a will are reduced in order to pay off other claims against the estate. However, ademption does not occur pro rata. Instead, gifts adeem in a specific order that can be explained further depending on your situation

If you are a spouse seeking to claim an elective share, or think that you are losing property that you have a right to because of an elective share decision, contact a Columbus probate litigation attorney at the Law Office of Mike Gertner today. You may have legal options available to you for handling this issue.