When people ask us about a spouse's inheritance rights in Ohio, they usually mean one of two things: either what will happen if their spouse dies without a will, or what will happen if their spouse tries to disinherit them. Let's discuss those separate issues one at a time.
The legal term for dying without a valid will in place is "dying intestate." If your spouse dies intestate, Ohio law determines what share of their probate property you will inherit. Notice the phrase "probate property." Probate property is any property that would be distributed through the probate process, whether or not the deceased had a will. Some property, like that held in a trust, funds in a retirement account, proceeds of a life insurance policy, or assets held in joint tenancy or as "transfer on death" pass outside of probate to a designated beneficiary or survivor.
Ohio intestacy law attempts to distribute probate property as most individuals would have directed, had they made a valid will. Here's a breakdown of how a spouse would inherit under these laws:
This arrangement is also known as the "spouse's share" in Ohio.
If the surviving spouse has minor children by the decedent, or the decedent dies leaving minor children but no spouse, the surviving spouse or children are also entitled to the first $40,000 of the probate estate for support purposes. This right, known as "spousal allowance," is in addition to other inheritance rights they may have.
If one spouse disinherits another in a will, the surviving spouse could be left without support and become a drain on the public purse. Therefore, most states, including Ohio, consider it a matter of public policy to prevent one spouse from leaving the other destitute. Enter the concept of what is called the "elective share" in Ohio.
With the elective share, a surviving spouse can reject their bequest in the decedent's will and elect to take what they would have received under Ohio law had the spouse died intestate. Since the probate "pie" stays the same size, the effect of a surviving spouse taking to choose a larger "slice" than the will gave them means that other heirs will necessarily take less.
The process of claiming an elective share (or of opposing one, if you are one of the other heirs), takes place within the probate court, which means you will want to be represented by a probate attorney who handles probate litigation matters, not just the administration of probate estates.
Even if you are entitled to an elective share, be aware that there are other ways to effectively limit what a surviving spouse receives after their spouse's death, such as by the use of a prenuptial agreement or trust. Typically, these devices are not intended to punish the surviving spouse, but protect the interests of other parties, often children from a previous marriage.
If possible, you and your spouse should discuss your estate plans and your goals together, so that neither of you will receive an unwelcome surprise later.