Ohio Elective Share: A Surviving Spouse's Rights Under Chapter 2106

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 4, 2026. Last reviewed October 4, 2026.

This guide follows chapter 2106, Rights of Surviving Spouses, in the order a spouse meets its sections after a death: the citation from the probate court, the election and its deadline, the share the election produces, the allowance and the home, and the smaller rights. Every rule is cited to the section of the Ohio Revised Code it comes from, read on codes.ohio.gov on October 4, 2026. It is general information, not advice about a particular marriage or estate.

The citation: how the choice is put to the spouse

After the initial appointment of an administrator or executor, the probate court shall issue a citation to the surviving spouse, if living, to elect whether to exercise the spouse's rights under chapter 2106, including, after the probate of a will, the right to elect to take under the will or under R.C. 2105.06 (2106.01(A)). The citation is served under Civil Rule 73 and is accompanied by a general description of the effect of the election and of the spouse's general rights under the chapter, including the procedures under 2106.03 and the presumption that arises if no election is made in time (2106.02(A) and (B)). The spouse may waive service of the citation by filing a written waiver that acknowledges receipt of that description (2106.01(A)). Within the time for electing, the spouse may also file a complaint asking the court to construe the will in the spouse's favor (2106.03).

Making the election

The election to take under 2105.06, and so to refuse the will, shall be made in person before the probate judge, or a deputy clerk appointed to act as referee, who shall explain the will, the rights under it, and the rights by law if the will is refused (2106.06). On an application, the court may instead issue a commission, with a copy of the will annexed, to a suitable person to take the election and explain the spouse's rights (2106.07). If the spouse cannot elect because of a legal disability, the court appoints a suitable person to value the provision made by the will, the spouse's rights under chapter 2105 and the spouse's adequate support needs, and may elect for the spouse to take under 2105.06 only if that election is necessary to provide adequate support during the spouse's life expectancy (2106.08). A spouse electing to take under the will may simply manifest that election in writing (2106.02(C)).

The five month deadline

The election may be made at any time after the death, but the surviving spouse shall not make the election later than five months from the date of the initial appointment of an administrator or executor; on a motion filed before the period expires, and for good cause shown, the court may allow further time (2106.01(E)). If no action is taken within the five months, it is conclusively presumed that the spouse elects to take under the will, and the election is entered on the court's journal (2106.01(E)). When proceedings for advice or to contest the will are begun within that time, the election may be made within three months after their final disposition if the will is not set aside (2106.01(E)). A spouse who dies before probate, or who survives probate but fails to elect in time, is conclusively presumed to have taken under the will, and the spouse's own heirs are bound by that presumption (2106.04). The same five month clock, extendable on motion for good cause, applies to every right under chapter 2106 unless a section says otherwise, and a right not exercised in time is conclusively presumed waived (2106.25). A spouse named sole devisee and legatee is presumed to take under the will (2106.01(F)).

What the election produces

If the surviving spouse elects to take under 2105.06, the spouse shall take not to exceed one-half of the net estate, unless two or more of the decedent's children or their lineal descendants survive, in which case the spouse shall take not to exceed one-third of the net estate (2106.01(C)). The net estate is determined before payment of federal estate tax, Ohio estate taxes under Chapter 5731, or any other tax subject to apportionment under 2113.86 or 2113.861 (2106.01(C)). The share itself is the intestate share described below, with the cap laid over it. Unless the will expressly provides that there shall be no acceleration, the balance of the net estate is disposed of as though the spouse had predeceased the testator (2106.01(D)). Where the will pours over to a trust the testator created during life, and the spouse has an interest or power under that trust, an electing spouse is considered for purposes of the trust to have predeceased the testator, and remainder interests accelerate in the property poured over, in the property the trustee held at death and in property that comes to the trustee by reason of the death, unless the trust instrument provides otherwise (2106.01(D)).

Electing to take under the will has consequences too. The spouse is then barred from an intestate share of the property passing under the will and takes under the will alone, unless the will plainly shows the provision was meant to be in addition to an intestate share; but the election does not bar the spouse's intestate share of any property the decedent left undisposed of, and, unless the will expressly otherwise directs, does not bar the right to remain in the mansion house or the allowance for support (2106.05).

The intestate share: R.C. 2105.06

When a person dies intestate, personal property is distributed and real property descends in the following course, so far as a spouse is concerned (2105.06):

• If there is a spouse and one or more children or their lineal descendants surviving, and all of the decedent's surviving children (or children with surviving descendants) are also children of the surviving spouse, the whole to the surviving spouse (2105.06(B)).
• If there is a spouse and one child or that child's lineal descendants surviving, and the spouse is not the natural or adoptive parent of the child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child's lineal descendants, per stirpes (2105.06(C)).
• If there is a spouse and more than one child or their lineal descendants surviving, the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the parent of none of them, plus one-third of the balance to the spouse, and the remainder to the children equally or to the lineal descendants of a deceased child, per stirpes (2105.06(D)).
• If there are no children or their lineal descendants, the whole to the surviving spouse (2105.06(E)).

The fixed sums are paid out of the tangible and intangible personal property in the intestate estate to the extent available, valued at appraised value, after the executor or administrator files an inventory of the items to be distributed in kind and the court finds the amount still due; any balance due is a charge on the title to real property in the estate, which does not bear interest and may be enforced by foreclosure (2106.11). Because the election under 2106.01 is an election to take under 2105.06, these are the shares the electing spouse receives, subject to the one half or one third cap.

The allowance for support: R.C. 2106.13

Division (A) reads: If a person dies leaving a surviving spouse and no minor children, leaving a surviving spouse and minor children, or leaving minor children and no surviving spouse, the surviving spouse, minor children, or both shall be entitled to receive, subject to division (B) of this section, in money or property the sum of forty thousand dollars as an allowance for support. If the surviving spouse selected more than one automobile under section 2106.18 of the Revised Code, the allowance for support prescribed by this section shall be reduced by the value of the automobile having the lowest value of the automobiles so selected. The money or property set off as an allowance for support shall be considered estate assets.

Division (B) reads: The probate court shall order the distribution of the allowance for support described in division (A) of this section as follows: (1) If the person died leaving a surviving spouse and no minor children, one hundred per cent to the surviving spouse; (2) If the person died leaving a surviving spouse and minor children, and if all of the minor children are the children of the surviving spouse, one hundred per cent to the surviving spouse; (3) If the person died leaving a surviving spouse and minor children, and if not all of the minor children are children of the surviving spouse, in equitable shares, as fixed by the probate court in accordance with this division, to the surviving spouse and the minor children who are not the children of the surviving spouse; (4) If the person died leaving minor children and no surviving spouse, in equitable shares, as fixed by the probate court in accordance with this division, to the minor children.

In fixing equitable shares under (B)(3) the court considers the respective needs of the spouse, of the minor children who are the spouse's children and of those who are not, and allocates to each side the share that is equitable in light of those needs (2106.13(B)(3)(a) to (c)). When the court must allocate the allowance, the administrator or executor shall file an application to allocate it within five months of the initial appointment (2106.13(D)). The administrator or executor shall pay the allowance unless a competent adult, or a guardian with the consent of the guardianship court, waives it (2106.13(E)). The value of a selected automobile is the value the spouse states in the affidavit under R.C. 4505.10(B) (2106.13(F)).

The mansion house

A surviving spouse may remain in the mansion house free of charge for one year, except that the property may be sold within that time for the payment of the decedent's debts, in which case the spouse is compensated from the estate for the fair rental value of the unexpired term, with the same priority as the allowance for support (2106.15). The spouse may also elect to receive, as part of the spouse's share of an intestate estate under 2105.06 and the allowance for support under 2106.13, the entire interest of the decedent in the mansion house, valued at its appraised value less the liens attributable to the decedent's interest (2106.10(A)); the election is made at or before the final account, and if the value of the spouse's share and allowance equals or exceeds the decedent's interest the court issues a certificate of transfer (2106.10(B) and (C)). A spouse who elects against the will may make the mansion house election only if the property the spouse is entitled to receive equals or exceeds the decedent's interest in the house (2106.01(B)). The election is also available in an estate relieved from administration or granted a summary release (2106.10(D)), and it lapses if the spouse dies before making it (2106.10(E)). The mansion house includes the decedent's title in the parcel on which the house sits and, at the spouse's option, the household goods in it and adjacent lots or farmland used with it as the decedent's home (2106.10(F)). Separately, a spouse, even one acting as executor or administrator, may purchase the decedent's interest in the mansion house and its household goods at the appraised value, and other property up to one third of the gross appraised value of the estate, by application or petition filed after the inventory and no later than one month after its approval (2106.16).

Automobiles, watercraft, funeral expenses and agreements

Upon the death of a married resident who owned at least one automobile, the surviving spouse may select one or more automobiles that did not pass by joint ownership with survivorship, by a transfer on death designation or by a specific gift in the will; the interest passes to the spouse on transfer of title under R.C. 4505.10, the total value of the selected automobiles as stated in the spouse's affidavit shall not exceed sixty-five thousand dollars, and each automobile so passing is not an estate asset and is not included in the inventory (2106.18(A)). Automobile includes a motorcycle and a truck used as a method of conveyance by the deceased spouse or the family (2106.18(D)). The spouse may likewise select one watercraft, one watercraft trailer and one outboard motor not specifically disposed of by will, which pass on delivery of the title and an affidavit to the clerk of courts and are not estate assets (2106.19(A)). A spouse who paid the funeral and burial expenses is entitled to reimbursement from the estate to the extent other creditors are not prejudiced (2106.20). Any antenuptial, postnuptial or separation agreement to which the decedent was a party is valid unless an action to set it aside is commenced, or its validity otherwise attacked, within four months after the appointment of the executor or administrator (2106.22); this is how a prenuptial agreement waiving these rights is given effect.

Dower

In addition to the rights in chapter 2106, a surviving spouse is entitled to any other rights in the Revised Code, including dower under Chapters 2103 and 5305 (2106.24). A spouse who has not relinquished or been barred from it is endowed of an estate for life in one third of the real property of which the other spouse was seized as an estate of inheritance at any time during the marriage; the dower interest terminates on the other spouse's death except as to real property the deceased spouse conveyed or encumbered during the marriage without the survivor's release, and in lieu of the dower that terminates the surviving spouse takes the distributive share under 2105.06 (2103.02). Dower also terminates on an absolute divorce (2103.02). This is why an Ohio deed, mortgage or transfer on death designation affidavit carries the spouse's release or subordination of dower; the transfer on death guide explains the affidavit's dower statement.

What chapter 2106 says, and does not say, about a living trust

The election in 2106.01 is measured against the net estate and gives the spouse what 2105.06 would give in intestacy; both sections speak of the decedent's estate. The chapter's only reference to a trust is 2106.01(D), which deals with a disposition by will to an inter vivos trust the testator created and treats an electing spouse as having predeceased for the trust's purposes, and R.C. 2107.63, which authorizes a pour-over gift to a trustee, says it does not affect any of the rights accorded to a surviving spouse under 2106.01. Nothing else in chapter 2106 mentions a trust; no section in the chapter states that property the decedent transferred to a revocable trust during life is counted toward the net estate or can be reached by the election, and no section states the opposite. The same is true of real property passing under a transfer on death designation affidavit, which R.C. 5302.23(B)(9) says is not testamentary and supersedes any transfer by will or intestacy. This page reports that silence rather than filling it, and a spouse who believes a trust was used to defeat these rights should get advice. For most married couples the point is the opposite one: a joint living trust that provides for the survivor, with the allowance, the mansion house right and the intestate share as the floor, leaves no election to make. The Ohio living trust page describes the joint plan, and the probate process guide describes the administration in which the citation issues.