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Understanding the Spouse’s “Elective Share” in Probate Cases

Understanding the Spouse’s “Elective Share” in Probate Cases
September 5, 2019 Shannon Dawes
Shannon Dawes, a small business law attorney in Columbus, Ohio.

A will is one of the most basic and easily-recognized estate planning documents. Simply put, a will is one person’s (the “testator”) directions to the court and the administrator appointed by the court concerning how the testator would like the testator’s assets distributed and affairs handled following his or her death. When a testator creates a will, the testator is generally able to distribute his or her possessions and valuables in a manner that is not in line with the way those items would be distributed under Ohio law. There is one exception to this, however: the spouse’s “elective share.”

The Elective Share is the Solution to Spousal Abandonment 

Some testators create wills as an attempt to “disinherit” those family members or heirs who might otherwise receive a portion of the testator’s estate upon the testator’s death. For example, a testator who has a son who has behaved in a less-than-commendable way can be “disinherited” – completely written out of the will. So long as these instructions are made by a person who is of sound mind and who follows all the requisite formalities in making his or her will, the disinheritance will usually be enforced.

If left unchecked, this could potentially leave spouses of decedents at a distinct disadvantage. A testator could (for example) disinherit his or her present spouse so that the testator’s children from a previous marriage could receive a greater amount of the testator’s estate. To prevent such an unfair outcome, Ohio Revised Code 2106.01 permits the surviving spouse of a testator to reject what the testator provided for the spouse in the testator’s will and instead take what he or she would have received if the decedent had not made any will at all.

How Can the Elective Share Impact the Estate Other Heirs Inherit?

How much of a difference would a spouse taking the elective share over the share provided for in the testator’s will make? The answer depends on (1) how big of a share the testator left his or her spouse in the will; (2) the size of the estate; and (3) the number of children of the testator.

For example, suppose a testator dies and leaves a $100,000 estate behind. The testator’s first, former wife survives him as does the child he had with this first wife as well as the testator’s second wife, to whom he was married at the time of his death. Suppose further that, under the terms of the will, the second wife would only receive $10,000 of the testator’s estate but the first wife and the child were to receive the remaining $90,000 in equal shares. If the second wife were to exercise her elective share, she could receive up to 50 percent – $50,000 – of the testator’s estate. The remainder of the estate would then be divided up between the first wife and the child in equal shares.

Can an Ohio Estate Planning Attorney Help Me Avoid My Spouse’s Elective Share?

For those testators who may have a valid reason for limiting their spouses’ share of their estates, there are other avenues available that may be able to accomplish the same objective. At Dawes Legal, LLC, our familiarity with and knowledge of Ohio’s probate laws mean that we can likely craft an estate plan that accomplishes your legitimate, lawful objectives. Call our office at (614) 733-9999 and set up your consultation with us as soon as possible.