Baby, You Can Drive My Car (Without Reducing Your Surviving Spouse Benefits Allowance)

Ohio law provides for a support allowance of $40,000 from the estate of a deceased person for a surviving spouse and/or minor children. If there are no minor children, or the minor children are also the children of the surviving spouse, the spouse will receive the entire allowance. If the deceased had minor children who are not also children of the surviving spouse, the probate court will equitably divide the allowance of support between the surviving spouse and minor children. This amount is sometimes referred to as a “spousal allowance,” “surviving spouse benefits,” or “family allowance.” It is considered a priority claim against the estate, meaning it is paid before most other claims.

The law also provides that the surviving spouse may select one or more automobiles titled in the deceased’s sole name and valued up to a total of $65,000. Any automobiles so selected are not to be included in an inventory of estate assets.

In recent years, there has been some ambiguity in the law about whether a spouse’s selection of even a single automobile should reduce the amount of the surviving spouse benefits. Legislative action that takes effect as of August 17, 2021 clarifies ORC Section 2106.03. The amended statute specifies that a surviving spouse is entitled to receive the spousal share of the surviving spouse benefits and one automobile that belonged to the deceased without reducing the allowance for support.

Ohio Revised Code Section 2106.13: How the Confusion Arose

Since 1990, Ohio law has permitted a surviving spouse to receive the spousal share of the support allowance and one automobile with no reduction to the support allowance. However, in 2017, Section 2106.13(A) was amended by House Bill 432 to read:

Sec. 2106.13(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 one or more 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 lowest value if more than one automobile is so selected. The money or property set off as an allowance for support shall be considered estate assets (emphasis added).

As you can see, the language in the statute is confusing. On the one hand, the statute clearly says that if the surviving spouse selects “one or more” automobiles, the support allowance “shall be reduced.” But the rest of the sentence says the amount of the reduction is the value of the lowest-value automobile IF more than one automobile is selected.

In other words, the first half of the sentence seems to clearly state that the amount of the spousal allowance must be reduced if a surviving spouse selects one of the deceased’s automobiles. But the second half of the very same sentence seems to condition the amount of the reduction on the selection of more than one automobile. This created confusion for surviving spouses and courts.

House Bill 432 had also amended Ohio Revised Code Section 2106.18(A) to allow a surviving spouse to select more than two automobiles, so long as the total value of the vehicles did not exceed $65,000. The amendment to Section 2106.13(A) was apparently intended to apply to situations where more than one automobile was selected, but the language was unclear.

The Fix: House Bill 464

In order to resolve the apparent ambiguity, the Legislature passed House Bill 464, which states in relevant part:

If the surviving spouse selected more than one automobile 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 lowest value of the automobiles so selected. The money or property set off as an allowance for support shall be considered estate assets (emphasis added).

In making the 2021 amendment, the Legislature considered the legislative history of the statute. That history indicated that the legislature intended to continue to provide surviving Ohio spouses both the entire support allowance and one of the deceased spouse’s automobiles.

The confusion, now resolved, over Section 2106.13(A), highlights the importance of clear drafting of Ohio probate statutes. If you have questions about Ohio probate law, including the spousal or family allowance, contact an experienced Ohio probate attorney to schedule a consultation to discuss your concerns.