How the Ohio Spousal Elective Share Rule Protects a Surviving Spouse

The Ohio Spousal Elective Share Rule ensures that a surviving spouse can claim a portion of their deceased spouse's estate—even if the Will disinherits them or leaves them less than what they are entitled to under Ohio law. This rule prevents a surviving spouse from being left financially destitute and guarantees them a fair share of the estate, regardless of the decedent’s intentions.

What Does the Ohio Spousal Elective Share Rule Provide?

Under Ohio law, a surviving spouse is entitled to an elective share of the deceased spouse’s estate. The percentage they receive depends on whether the decedent had children and how many. This provision ensures that a surviving spouse cannot be entirely disinherited and will receive a portion of the wealth accumulated during the marriage.

How Does the Elective Share Work?

If a Will leaves the surviving spouse nothing—or less than their rightful share—they have the legal right to "elect" to take their portion of the estate as prescribed by law. This means they can "take against the Will" and claim their elective share, regardless of the Will’s terms.

To exercise this right, the surviving spouse must file a claim within five months of the Executor or Administrator’s appointment. If they do not act within this timeframe, they forfeit their right to the elective share and must accept the Will’s provisions.

Why Is the Spousal Elective Share Rule Important?

This rule protects surviving spouses from financial hardship by ensuring they are not left without support—especially if the deceased spouse intentionally tried to disinherit them. It acknowledges their contributions during the marriage and serves as a safeguard against unfair estate planning decisions.

Additionally, the elective share rule prevents situations where one spouse might alter a Will to leave the surviving spouse without sufficient financial resources. It acts as a legal safety net for spouses who may have been excluded or treated unfairly in estate plans.

Can a Surviving Spouse Waive Their Elective Share?

Yes, a surviving spouse can waive their right to the elective share, typically through a prenuptial or postnuptial agreement. This waiver must be voluntary and signed by both parties. However, a spouse cannot waive this right retroactively after the decedent’s death.

Conclusion

The Ohio Spousal Elective Share Rule provides essential protection for surviving spouses. Even if a Will is unfavorable or disinherits them, they can still claim a portion of the estate. Understanding this rule helps surviving spouses make informed decisions about their rights and estate administration. If you’re facing this situation, consulting an attorney can help you navigate Ohio law and secure your fair share of the estate.

‍