Most of the time in Ohio, spouses are the beneficiaries in their spouse’s will. However, with modern family structures being different and more diverse than in years past, the question of surviving spouse rights often comes up. While laws differ from state to state, Ohio inheritance laws state that a surviving spouse cannot be written out of a will. Ohio rights of a surviving spouse include the right to accept what he/she has been given under the deceased spouse’s will. Or, they may elect to take against the will within five months.
Electing to Take Against the Will
What does it mean to elect to take against the will? Included in Ohio rights of a surviving spouse is the ability to elect against the will for ownership or a share of real estate, financial investments or virtually any other asset. Manning & Clair recently handled a case where a woman, who had remarried, wanted to leave the family home where she and her second husband lived, to her four children from her first marriage. The home is where the children grew up and had sentimental value.
Her will specified the husband could live there rent-free if he wanted to. But, the children would receive the proceeds from the sale of home. The surviving spouse elected to move out of the house but wanted money from the sale. His initial request was denied, but upon appeal, the court ruled in his favor. So, when one of the children bought the home, he received a portion of the proceeds even though it went against the mother’s stated wishes.
How did this happen when it was specified in her will? As was mentioned earlier, Ohio rights of a surviving spouse include the ability to take an election against the will. This will let the court decide what is fair.
Protect Your Wishes After Death
In the above example, the wife should have placed the home in a trust. This would have helped ensure that her wishes were honored after her death. A trust is a legal contract that an attorney drafts. It names a trustee who ensures your assets are managed according to your wishes both during your lifetime and after your death. Potential benefits from establishing a trust include:
- Trusts avoid the probate process and may provide tax benefits.
- Trusts offer specific parameters for the use of your assets.
- Revocable trusts can help during illness or disability – not just death.
- Trusts allow for flexibility.
What Assets Can You Put in a Trust?
You can place real estate, investments, bank accounts, vehicles and recreational equipment, season tickets to sporting events, wine collections, etc. in a trust. If you own a business, we recommend creating a buy/sell agreement in a trust to protect the business. There are different types of trusts, so consult with an attorney to identify the best path forward.
Ohio Inheritance Laws Regarding Naming A Direct Beneficiary
Name a direct beneficiary to ensure that your assets are directed to the person(s) you want them to go to. Despite what many people think, if you have a direct beneficiary listed on an asset, directions in your will do not control who inherits what.
Unfortunately, if you do not name a beneficiary, Ohio inheritance laws state that your assets will go through probate. This can be a costly and drawn-out process. You can name multiple beneficiaries, and it is important to remember that if you designate a person with “special needs” as your beneficiary, you could put them at risk of unintentional disqualification of receiving these valuable government benefits. Again, consult with an attorney that specializes in probate law.
How to Divide Your Assets After Death
Follow these steps when deciding how you want your assets divided following your death:
- Spell out exactly what you want your estate to look like. And consult with us to make sure it is set up properly.
- Don’t assume that people will get along or do the right thing after your death – you must protect your assets.
- Be honest and realistic about the situation and consult with an attorney.
Contact Us to Learn More About Ohio Inheritance Laws
Manning & Clair Attorneys At Law have extensive experience working with families on estate planning, trust, will and probate law. You can expect attentive, personalized service at every step in the legal process. Whether it’s planning for your family’s future, executing a loved one’s will, or working through the probate process, Manning & Clair Attorneys At Law are ready to help. Contact us to start planning today!
Manning & Clair Note: This information is a general overview and discussion of the subject. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Please consult an attorney for advice about your individual situation.