Dying in Ohio without a Will, The Rights of a Spouse

Dying in Ohio without a Will

When a person in Ohio dies intestate (without a will), if they have title or right to personal property, or to real estate or inheritance, the personal property is distributed, and the real estate or inheritance descends to the appropriate parties. There are many different ways the property may need to be distributed (ORC Ann. 2105.06):

  • If is there is no surviving spouse, the property is distributed in equal shares to the children of the decedent or the descendants of the children.
  • If there is a surviving spouse and one or more children of the decedent, and all of the children are also children of the surviving spouse, all of the estate goes to the surviving spouse.
  • If there is a spouse and one child of the decedent surviving or descendants of the child surviving and the surviving spouse isn’t the natural or adoptive parent of the decedent’s child, then the first $20,000 plus one-half of the balance of the estate goes to the surviving spouse and the remainder goes to the child or his or her descendants via per stirpes.
  • If there is a surviving spouse and more than one child of the children’s descendants surviving, the first $60,000 plus one-third of the balance of the estate goes to the surviving spouse if the spouse of the natural or adoptive parent of one, but not all, of the children. Alternatively, the first $20,000 plus one-third of the balance of the estate goes to the surviving spouse if the spouse isn’t the natural or adoptive parent to any of the children. In either case, the remainder of the estate goes to the children or to their descendants equally via per stirpes.
  • If there are no children of the decedent or the descendants of the children, then the entire estate goes to the surviving spouse.
  • If there isn’t a surviving spouse, no children, or descendants of children, then the estate goes to the surviving parents or the surviving parent.
  • If there isn’t a surviving spouse, no children, descendants of children, or no parent surviving, then the estate is distributed equally by per stirpes to the brothers and sisters of the decedent, or to the descendants of any brother or sister.
  • If there aren’t any brothers or sisters or descendants of the brothers and sisters, one-half of the estate goes to the paternal grandparents and one-half of the estate goes to the maternal grandparents.
  • If there isn’t a paternal grandparent or maternal grandparent, one-half of the estate goes to the descendants of the grandparents by per stirpes. If there aren’t any descendants of the grandparents, then the estate goes to the surviving grandparents or to their descendants by per stirpes. If there aren’t any surviving grandparents or descendants of them, then the estate goes to the next of kin of the estate.
  • If there isn’t a next of kin, the estate goes to the stepchildren or the descendants of the stepchildren via per stirpes.
  • If there isn’t any stepchildren or descendants of the stepchildren, the estate goes to the state of Ohio (ORC Ann. 2105.06).

The Rights of a Surviving Spouse in Ohio

If a person dies leaving a surviving spouse without any minor children, a surviving spouse and minor children, or minor children and no surviving spouse, these parties are entitled to receive $40,000 as an allowance for support. If the person died leaving a surviving spouse and no minor children, all of the allowance for support goes to the surviving spouse.

If the person died leaving a surviving spouse and minor children of both the decedent and the surviving spouse, all of the allowance for support goes to the surviving spouse. If the person died leaving a surviving spouse and minor children, and not all of the minor children are children of the surviving spouse, the allowance for support is distributed equally to the surviving spouse and the minor children who are not children of the surviving spouse. If the person died leaving minor children and no surviving spouse, the allowance for support is distributed equally to each minor child (ORC Ann. 2106.13).

A surviving spouse can choose to receive the decedent spouse’s interest in a mansion house as the surviving spouse’s share of the estate and as an allowance for support. (The mansion house is a legal term that includes the decedent’s title of the land that the house resides, the decedent’s title of the household items in the house, and land or farmland next to the house.)

If the value of the property and the allowance for support that the spouse is authorized to collect is equal or greater than the value of the decedent spouse’s interest in the mansion house, the court will issue the certificate of transfer. If the surviving spouse dies before making this election, he or she will be presumed to have not made such an election. After the surviving spouse’s death, no one else is allowed to make this election (ORC Ann. 2106.10).

For questions related to estate planning, probate administration, or trust administration, feel free to contact Elliott Stapleton to schedule an initial consultation.

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