The Rights Of An Ohio Spouse Not Included In Their Spouse’s Will

On Behalf of | Apr 20, 2023 | Will Contests

Spouses are often the main focus in someone’s estate plan, other than their young children. If people die without wills, spouses have very strong rights according to intestate succession laws. Many testators who draft wills and trusts intentionally include terms for the comfort and support of their spouses after they die.

However, not everyone has a compassionate and loving approach to estate planning. Some people lose a spouse after decades of marriage and then discover that they won’t inherit anything of value from the estate. New widows and widowers may panic, worrying that they won’t be able to support themselves when their spouse dies and leaves them nothing. Thankfully, under Ohio state law, surviving spouses have the right to request an elective share of their former spouse’s estate.

Spousal Disinheritance Isn’t Usually Possible

Although people can and do include all kinds of unusual terms in their estate plans, not every clause in someone’s will holds up under scrutiny and probate court. An estate plan that denies a spouse a reasonable share of an estate will very likely be subject to challenge in probate court.

Surviving spouses who do not receive a sizable portion of their deceased spouse’s estate can ask for their elective share in probate court. Generally, a spouse can receive up to half of the estate. If there are more than two children to inherit from the estate, the elective share of the surviving spouse decreases to a third of the overall estate. They may also have a right to a claim of support of up to $40,000, though someone may have to share that with surviving dependent children. There are even special rules for protecting the residency of a spousal in a home after the owner dies.

Carelessness And Pettiness Can Detract From Someone’s Legacy

There is a saying that one should never attribute to maliciousness what could be the fault of carelessness, and that is certainly true when it comes to questionable planning. There are those who write a loved one out of their will in a malicious attempt to get revenge posthumously, but often people fail to think about what their spouse will need when they die or they don’t recognize what property might be only in their name.

Regardless of whether someone forgets to include their spouse in certain estate planning documents or intentionally leaves them out, their plans for their legacy may end up disrupted by an estate challenge. Spouses omitted from a will or estate plan may need to contest the documents in court and request their elective share of the estate.

Learning more about will contests and the rights of specific family members by speaking with a legal professional can benefit those who are concerned about the content of a particular Ohio estate plan.


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