The Elective Share
Under Ohio law, a spouse cannot be disinherited by a will. Through a concept known as elective share, the surviving spouse may elect to receive what is provided for in the deceased spouse’s will or receive what is provided by law. How much the surviving spouse receives from the elective share depends on the family status of the deceased spouse. The following is the elective share for spouses as provided by the Ohio Revised Code:
- If the decedent (deceased spouse) died with a spouse but no descendants, the surviving spouse inherits the entire probate estate.
- If the decedent died with a spouse, and their only descendants were also descendants of the surviving spouse, the surviving spouse inherits the entire probate estate.
- If the decedent died with a spouse and one child who is not the child of the surviving spouse, the surviving spouse inherits the first $20,000 of the probate estate, plus half of the remaining estate. The child takes the rest.
- If the decedent died with a spouse and multiple children who were not children of the surviving spouse, and at least one child together with the surviving spouse, the surviving spouse inherits the first $60,000 of the estate and one-third of the balance, with the descendants who were unrelated to the surviving spouse taking the rest.
- If the decedent died with a spouse and multiple children who were not children of the surviving spouse, and no children together with the surviving spouse, the surviving spouse inherits the first $20,000 of the probate estate and one-third of the balance, with the descendants who were unrelated to the surviving spouse taking the rest.
Consider the following example as to how the elective share is applied:
Mark and Mindy each have two children from previous marriages. Mark has farmed his entire life and built a large farming operation prior to marrying Mindy. Mindy is not involved in the farming operation. Mark’s two children plan to take over the farming operation. Mark executes a Will that leaves all his assets to his children. Mark believes the Will causes all his assets to go to his children at death. After Mark’s death, Mindy decides to take her elective share. Because there are multiple children from a previous marriage, Mindy will receive $20,000 plus one-third of Mark’s assets.
As the above example illustrates, Mark could not disinherit Mindy using his will. Under Ohio law, Mindy had the right to receive assets from Mark’s estate even though he had left nothing in his will for Mindy. The same would apply if Mark had no will at all which is called intestacy. In intestate estates, the elective share also applies.
It should be noted that the elective share only applies to probate assets. Assets that are disposed of through a trust or a transfer/payable on death beneficiary are not subject to the elective share. If Mark had all his assets in a trust and left nothing for Mindy, Mindy could not elect against the trust assets because they were not subject to probate jurisdiction. Also, if Mark had his children as payable on death beneficiaries of all his financial accounts, Mindy could not make an elective share against those financial accounts either.
Due to the ability to avoid the elective share, trusts can be valuable tools in farm succession planning involving second marriages. In the next installment, we will continue our discussion of planning with second marriages by explaining how trusts can be used to provide for the surviving spouse while ensuring the assets end up with the deceased spouse’s children.
 To avoid probate, assets must be titled to the trust or be titled payable/transfer on death to the trust. Assets that must go through a “pour over” will before being transferred to the trust are subject to probate.