Full question:
My brother in law executed a will before his death. He doesn’t like my sister (his wife) at all. He left nothing for her in his Will. He was in love with another girl and left all his property to his girlfriend in his will. Can my sister claim any of her diseased husband’s property despite his will?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Ohio
Answer:
Yes. Your sister can claim her elective share in her deceased husband’s property. In Ohio, you sister is entitled to an elective share of your deceased brother in law’s property. She can elect to take a share that she would be entitled to if her husband had died without a Will. You can have a look at the relevant law in this regard below:ORC Ann. § 2106.01
Election by surviving spouse.
(A) After the initial appointment of an administrator or executor of the estate, the probate court shall issue a citation to the surviving spouse, if any is living at the time of the issuance of the citation, to elect whether to exercise the surviving spouse's rights under Chapter 2106. of the Revised Code, including, after the probate of a will, the right to elect to take under the will or under section 2105.06 of the Revised Code.
A surviving spouse may waive the service of the citation required under this division by filing in the probate court a written waiver of the citation. The waiver shall include an acknowledgment of receipt of the description of the general rights of the surviving spouse required by division (B) of section 2106.02 of the Revised Code.
(B) If the surviving spouse elects to take under section 2105.06 of the Revised Code and if the value of the property that the surviving spouse is entitled to receive is equal to or greater than the value of the decedent's interest in the mansion house as determined under section 2106.10 of the Revised Code, the surviving spouse also is entitled to make an election pursuant to division (A) of section 2106.10 of the Revised Code.
(C) If the surviving spouse elects to take under section 2105.06 of the Revised Code, the surviving spouse shall take not to exceed one-half of the net estate, unless two or more of the decedent's children or their lineal descendants survive, in which case the surviving spouse shall take not to exceed one-third of the net estate.
For purposes of this division, the net estate shall be determined before payment of federal estate tax, estate taxes under Chapter 5731. of the Revised Code, or any other tax that is subject to apportionment under section 2113.86 or 2113.861 of the Revised Code.
(D) Unless the will expressly provides that in case of an election under division (A) of this section there shall be no acceleration of remainder or other interests bequeathed or devised by the will, the balance of the net estate shall be disposed of as though the surviving spouse had predeceased the testator. If there is a disposition by a will to an inter vivos trust that was created by the testator, if under the terms of the trust the surviving spouse is entitled to any interest in the trust or is granted any power or nomination with respect to the trust, and if the surviving spouse makes an election to take under section 2105.06 of the Revised Code, then, unless the trust instrument provides otherwise, the surviving spouse is considered for purposes of the trust to have predeceased the testator, and there shall be an acceleration of remainder or other interests in all property bequeathed or devised to the trust by the will, in all property held by the trustee at the time of the death of the decedent, and in all property that comes into the possession or under the control of the trustee by reason of the death of the decedent.
(E) The election of a surviving spouse to take under a will or under section 2105.06 of the Revised Code may be made at any time after the death of the decedent, but the surviving spouse shall not make the election later than five months from the date of the initial appointment of an administrator or executor of the estate. On a motion filed before the expiration of the five-month period, and for good cause shown, the court may allow further time for the making of the election. If no action is taken by the surviving spouse before the expiration of the five-month period, it is conclusively presumed that the surviving spouse elects to take under the will. The election shall be entered on the journal of the court.
When proceedings for advice or to contest the validity of a will are begun within the time allowed by this division for making the election, the election may be made within three months after the final disposition of the proceedings, if the will is not set aside.
(F) When a surviving spouse succeeds to the entire estate of the testator, having been named the sole devisee and legatee, it shall be presumed that the spouse elects to take under the will of the testator, unless the surviving spouse manifests a contrary intention.
ORC Ann. § 2106.02
Citation to make election.
(A) The citation to make the election referred to in section 2106.01 of the Revised Code shall be served on the surviving spouse pursuant to Civil Rule 73. Notice that the citation has been issued by the court shall be given to the administrator or executor of the estate of the deceased spouse.
(B) The citation shall be accompanied by a general description of the effect of the election to take under the will or under section 2105.06 of the Revised Code and the general rights of the surviving spouse under Chapter 2106. of the Revised Code. The description shall include a specific reference to the procedures available to the surviving spouse under section 2106.03 of the Revised Code and to the presumption that arises if the surviving spouse does not make the election in accordance with division (E) of section 2106.01 of the Revised Code. The description of the general rights of the surviving spouse under Chapter 2106. of the Revised Code shall include a specific reference to the presumption that arises if the surviving spouse does not exercise the rights under Chapter 2106. of the Revised Code within the time period specified by section 2106.25 of the Revised Code. The description of the effect of the election and of the general rights of the surviving spouse need not relate to the nature of any particular estate.
(C) A surviving spouse electing to take under the will may manifest the election in writing within the times described in division (E) of section 2106.01 of the Revised Code.
ORC Ann. § 2106.03
Complaint; construction of will.
Within the times described in division (E) of section 2106.01 of the Revised Code for making an election, the surviving spouse may file a complaint in the probate court making all persons interested in the will defendants, that requests a construction of the will in favor of the surviving spouse and for the court to render a judgment to that effect.
ORC Ann. § 2106.04
Failure to make election; presumption.
If the surviving spouse dies before probate of the will, or, having survived the probate, thereafter either fails to make the election provided by section 2106.01 of the Revised Code or dies without having made an election within the times described in division (E) of that section, the surviving spouse shall be conclusively presumed to have elected to take under the will, and the surviving spouse and the heirs, devisees, and legatees of the surviving spouse, and those claiming through or under them, shall be bound by the conclusive presumption, and persons may deal with the property of the decedent accordingly; provided that, if applicable, the provisions of sections 2105.31 to 2105.39 of the Revised Code shall prevail over the provisions relating to the right of election of a surviving spouse.
ORC Ann. § 2106.05
Election to take under the will; effect.
If a surviving spouse elects to take under the will, the surviving spouse shall be barred of all right to an intestate share of the property passing under the will and shall take under the will alone, unless it plainly appears from the will that the provision for the surviving spouse was intended to be in addition to an intestate share. An election to take under the will does not bar the right of the surviving spouse to an intestate share of that portion of the estate as to which the decedent dies intestate. Unless the will expressly otherwise directs, an election to take under the will does not bar the right of the surviving spouse to remain in the mansion house, and does not bar the right of the surviving spouse to receive the allowance for the support provided by section 2106.13 of the Revised Code.
ORC Ann. § 2106.06
Election made in person.
The election of a surviving spouse to take under section 2105.06 of the Revised Code and thereby refusing to take under the will shall be made in person before the probate judge, or a deputy clerk who has been appointed to act as a referee, except as provided in sections 2106.07 and 2106.08 of the Revised Code.
When the election is made in person before the judge or referee, the judge or referee shall explain the will, the rights under the will, and the rights, by law, in the event of a refusal to take under the will.
ORC Ann. § 2106.07
Commission issued to take election of spouse.
Upon the filing of an application on behalf of a surviving spouse, the probate court may issue a commission, with a copy of the will annexed, directed to any suitable person, to take the election of the surviving spouse as described in section 2106.01 of the Revised Code. In the commission, the court shall direct the suitable person to explain the rights of the surviving spouse under the will and under Chapter 2105. of the Revised Code.
ORC Ann. § 2106.08
Election made by one under legal disability.
If, because of a legal disability, a surviving spouse is unable to make an election as provided by section 2106.01 of the Revised Code, as soon as the facts come to the knowledge of the probate court, the probate court shall appoint some suitable person to ascertain the value of the provision made for the surviving spouse by the testator, the value of the rights of the surviving spouse in the estate of the testator under Chapter 2105. of the Revised Code, and the adequate support needs of the surviving spouse after taking into consideration the other available resources and the age, probable life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the surviving spouse. The appointment by the court shall be made at any time within the times described in division (E) of section 2106.01 of the Revised Code for making an election under that section.
When the person so appointed returns the report of the person's investigation, the court may elect for the surviving spouse to take under section 2105.06 of the Revised Code only if it finds, after taking into consideration the other available resources and the age, probable life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the surviving spouse, that the election to take under section 2105.06 of the Revised Code is necessary to provide adequate support for the surviving spouse during the surviving spouse's life expectancy.
After making its determination under this section, the court shall record upon its journal the election made for the surviving spouse. The election, when so entered, shall have the same effect as an election made by one not under legal disability.
ORC Ann. § 2106.10
Election to receive mansion house.
(A) A surviving spouse may elect to receive, as part of the surviving spouse's share of an intestate estate under section 2105.06 of the Revised Code and the allowance for support under section 2106.13 of the Revised Code, the entire interest of the decedent spouse in the mansion house. The interest of the decedent spouse in the mansion house shall be valued at the appraised value with the deduction of that portion of all liens on the mansion house existing at the time of death and attributable to the decedent's interest in the mansion house.
(B) The election pursuant to division (A) of this section shall be made at or before the time a final account is rendered.
(C) If the spouse makes an election pursuant to division (A) of this section, the administrator or executor shall file, unless the election is one made under division (D) of this section, an application for a certificate of transfer as provided for in section 2113.61 of the Revised Code. The application also shall contain an inventory of the property and the allowance for support that the spouse is entitled to receive under sections 2105.06 and 2106.13 of the Revised Code. If the value of the property and the allowance for support that the spouse is entitled to receive is equal to or greater than the value of the decedent's interest in the mansion house, the court shall issue the certificate of transfer.
(D) The surviving spouse may make an election pursuant to division (A) of this section in an estate relieved from administration under section 2113.03 of the Revised Code or in an estate that is subject to an order granting a summary release from administration under section 2113.031 of the Revised Code. The election shall be made at the time of or prior to the entry of the order relieving the estate from administration or the order granting a summary release from administration. Either the surviving spouse or the applicant for the order shall file the application for the certificate of transfer under division (C) of this section.
(E) If the surviving spouse dies prior to making an election pursuant to division (A) of this section, the surviving spouse shall be conclusively presumed not to have made an election pursuant to that division. After the surviving spouse's death, no other person is authorized to make an election pursuant to that division on behalf of the estate of the surviving spouse.
(F) As used in this section, the mansion house includes the decedent's title in the parcel of land on which the house is situated and, at the option of the surviving spouse, the decedent's title in the household goods contained within the house and the lots or farmland adjacent to the house and used in conjunction with it as the home of the decedent.
ORC Ann. § 2106.11
Payment of specific monetary share to surviving spouse; charge on realty.
Subject to the right of the surviving spouse to elect to receive the decedent's interest in the mansion house pursuant to section 2106.10 of the Revised Code, the specific monetary share payable to a surviving spouse under division (B), (C), or (D) of section 2105.06 of the Revised Code shall be paid out of the tangible and intangible personal property in the intestate estate to the extent that the personal property is available for distribution. The personal property distributed to the surviving spouse, other than cash, shall be valued at the appraised value.
Before tangible and intangible personal property is transferred to the surviving spouse in payment or part payment of the specific monetary share, the administrator or executor shall file an application that includes an inventory of the personal property intended to be distributed in kind to the surviving spouse, together with a statement of the appraised value of each item of personal property included. The court shall examine the application and make a finding of the amount of personal property to be distributed to the surviving spouse, and shall order that the personal property be distributed to the surviving spouse. The court concurrently shall make a finding of the amount of money that remains due and payable to the surviving spouse in satisfaction of the specific monetary share to which the surviving spouse is entitled under division (B), (C), or (D) of section 2105.06 of the Revised Code. Any amount that remains due and payable shall be a charge on the title to any real property in the estate but the charge does not bear interest. This charge may be conveyed or released in the same manner as any other interest in real property and may be enforced by foreclosure or any other appropriate remedy.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
