Trusted Southern Ohio Attorneys

Can you leave your spouse out of your will?

On Behalf of | Oct 24, 2023 | Estate Planning

For the most part, when create your will, you get to choose who you will provide for and who you will not. You can leave even close relatives out of your will, if you choose to.

However, there is a provision under Ohio law that can make it impossible to completely disinherit your spouse. This is generally known as the “elective share.” In this blog post, we’ll take a look at the elective share and what it does.

The elective share

The main purpose of your will is to provide instructions for how you want your estate distributed after your death. Provided your will meets all the formal requirements and doesn’t violate any other laws or policies, a court will almost certainly consider it legally enforceable: The executor will have to follow your instructions as much as possible.

However, Ohio’s elective share law allows a surviving spouse to choose to receive some or all of a deceased spouse’s estate even if they have been left out of the will.

The purpose of this law is to prevent surviving spouses from being left in poverty by a cruel or neglectful spouse. However, it can also lead to a lot of confusion in estate planning and administration.

The formula

The percentage of the estate the surviving spouse can claim depends on whether the deceased left surviving descendants, and on the parentage of those children.

If the deceased left no surviving children, then the surviving spouse can 100% of the estate. Likewise, if the only children were also descendants of the surviving spouse, then the surviving spouse can claim the entire estate whether or not they were mentioned in the will.

The formula gets more complex in cases in which the deceased had children with a different partner. For example, if the deceased had a child from a different relationship, the first $20,000 of the estate goes to the surviving spouse. What remains of the estate is divided in half, with half going to the surviving spouse and half to the surviving child.

If the deceased had multiple children from a different relationship and one child with the surviving spouse, the surviving spouse can take the first $60,000 of the estate, plus one-third of the remaining estate. The rest goes to the descendants who are not related to the surviving spouse.

The bottom line

As we have seen, the elective share law makes it nearly impossible to disinherit a spouse through a will. It can also lead to a great deal of confusion in cases involving blended families.

If you have a blended family, it’s a good idea to go beyond your will. Use trusts and other estate planning tools to make sure you can provide for your loved ones in the way you wish.