As a spouse, what are my rights during the probate process?

Probate law in each state is somewhat different; therefore, it is extremely important that a spouse understand his or her rights during the probate process according to the laws within that state. In Ohio, spouses have several “enhanced rights” regardless of whether the decedent died with or without a will.

It is extremely important that a spouse seek the counsel of a qualified and experienced Ohio probate attorney as soon as possible to determine what rights the spouse may have, especially if a pre-nuptial or post-nuptial agreement is in place, as marital agreements can affect the spousal rights during the probate process.

The experienced estate and probate attorneys of Lovett & Lovett Co., LPA have assisted many spouses during the probate process to ensure that their rights are protected and that the final wishes of their spouse are honored. Below are some of the rights a spouse has during the probate process. This is not an exhaustive list; therefore, we strongly encourage you to contact our office to discuss your specific situation in greater detail.

In most cases, in order to exercise these rights, you must choose not to accept the terms of the will. There are advantages and disadvantages to this decision that you should discuss with a qualified probate attorney.

Common Spousal Rights during the Probate Process

  • The spouse is entitled to choose up to two cars from the estate worth no more than $40,000 together, if neither car was specifically bequeathed to another heir.
  • The surviving spouse is also entitled to receive one watercraft and one outboard motor if neither is specifically bequeathed to another party.
  • A spouse may use funds in survivor or joint accounts without first obtaining a tax release from the County Auditor.
  • A surviving spouse can elect to take all of the $40,000 family allowance or any portion thereof.
  • A spouse is entitled to receive a minimum of one-third of the probate estate.
  • The spouse is permitted to purchase assets from the estate.
  • A surviving spouse has the right to live in the marital home for up to one year without paying rent to the estate or any other party. If the marital home must be sold to pay debts of the estate, the surviving spouse can receive an amount equal to the fair rental value of the marital home.
  • Because the property laws in Ohio still recognize the rights of dower with regard to real property, a surviving spouse may hold a lifetime interest in one-third of the real estate that the deceased spouse owned if the decedent sold or transferred it without the surviving spouse’s permission.
  • If the deceased spouse did not have a will when he or she died, the surviving spouse takes precedence over other family members or parties when the court appoints an executor to administer the estate.
  • Likewise, if there is no will in place when a spouse dies, the surviving spouse and any children of the decedent take precedence for inheritance purposes over all other parties.
  • The spouse is entitled to be reimbursed for payment of funeral expenses and costs.

Again, the above spousal rights during the probate process may or may not apply in your case. Before making any decisions or signing any agreements or waivers, we strongly recommend you contact our office to discuss your rights.