Rights of a Spouse Disinherited in a Will

The death of a spouse can be a traumatic event. The situation is made worse if you discover that your husband or wife did not leave anything to you in his or her Last Will and Testament. In the realm of estate planning and probate law, when the deceased leaves nothing to a surviving spouse or children, we say this person was disinherited.

Fortunately, Ohio law provides protections for a spouse disinherited in a will. However, because there are specific timelines and procedures to follow it is important that you meet with an experienced Ohio estate planning and probate lawyer as soon as possible.

A Surviving Spouse Can "Elect Against the Will"

Ohio Revised Code Section 2106 spells out the rights of a surviving spouse. Specifically, you can choose to take under the Will, or elect against the Will in probate court. Taking under the Will means you agree to accept whatever is given to you in your spouse's Last Will and Testament. If you elect against the Will, you can take up to one-half of the net estate, unless there are more than two surviving children, in which case you can take up to one-third of the net estate. Understand, however, that by electing against the Will you are choosing not to receive anything that would have been your under the Will. You can choose one or the other - to take under the Will or elect against the Will - not both. If you choose to take against the Will, you must notify the probate judge, in person, within five months after the executor of the estate was appointed.

Support Allowances for a Surviving Spouse

As a surviving spouse, you may be entitled to a support allowance of up to $40,000. Of course, if the estate does not have this much money you will not receive the full amount. If your spouse has any children under age 18 who are not also your children, the support allowance may be divided between the surviving spouse and those children, with consideration given to the needs of each.

The surviving spouse is allowed to take up to two vehicles that are included in the probate estate, as long as they are not specifically given to someone else, and their value is not more than $40,000 total.

The surviving spouse is also permitted to remain in the primary residence (the "mansion house") for up to one year from the date of death, unless the house is sold, in which case you are entitled to receive fair rental value for the remainder of that year.

You may purchase real estate and personal items from your spouse's estate as long as the items or property was not specifically given to someone else.

As the surviving spouse, you are entitled to be reimbursed for any funeral expenses, and to challenge the validity of a prenuptial or separation agreement.

Contact an Experienced Ohio Estate Planning and Probate Attorney

The loss of a loved one is a difficult event. It is made even more difficult if you learn that you were disinherited from your spouse's Will. For assistance with the estate administration and probate process, contact Wolfe Legal Services today. I work with people throughout greater Columbus, including Dublin, Bexley, Upper Arlington, Marysville, Hilliard, Delaware, and Newark, and throughout Franklin County, Delaware County, Union County, and Licking County. Call (614) 263-5297 any time or complete our online form.