Probate Family Allowance Requirements in Ohio

At a glance

Requirements one by one

Who receives the $40,000

Section 2106.13 creates one aggregate allowance, not $40,000 per claimant. The probate court distributes it according to the family structure:

• A surviving spouse receives all of it when there are no minor children.
• The spouse also receives all of it when every minor child is the spouse's child.
• If one or more minor children are not the spouse's children, the court divides equitable shares between the spouse and those children. It must consider the needs of the spouse, the spouse's minor children, and the other minor children.
• If there is no spouse, the court divides equitable shares among the minor children according to their respective needs.

The statute does not name an adult-dependent child, parent, or other family member as a claimant.

What may satisfy the allowance

The allowance may be paid in money or property. Section 2106.13 says the setoff remains estate assets. It states no monthly period or other duration; the rule is a one-time $40,000 amount.

A separate vehicle election can change the arithmetic. If the spouse selects more than one automobile under § 2106.18, the allowance is reduced by the value of the lowest-valued selected automobile. In a mixed-family allocation, the court must also consider the benefit the spouse received from that vehicle.

When the fiduciary must apply

The entitlement exists by statute, but the court orders its distribution. When the court must allocate shares—because not all minor children are the spouse's children, or because there is no spouse and multiple minor children—the executor or administrator must file the allocation application within five months after the initial appointment.

The statewide forms assign the filing to the fiduciary. Form 7.1 covers a spouse with no minor child outside the spouse's child group, or no spouse and one minor child. Form 7.2 covers the allocation cases. Neither the statute nor these forms states a later death, remarriage, majority, or fixed-duration termination rule.

Hearing, notice, and entry service

Form 7.2 directs the probate court to set a hearing and requires the fiduciary to give all interested parties seven days' notice by certified mail. The court then apportions the allowance. Form 7.2 also orders the fiduciary to serve the apportionment entry on all interested persons within seven days.

Form 7.1 does not use that allocation-hearing block. Its entry instead orders a fiduciary who is not the surviving spouse to serve all interested persons within seven days.

Priority, insolvency, and waiver

Section 2117.25 places the allowance third in Ohio's statutory payment order. Administrative costs and the second listed class come first. If assets cannot pay every claim in one class, that class is paid ratably. The allowance also does not need to be presented as an ordinary creditor claim.

The executor or administrator must pay unless a competent adult waives the allowance or a guardian waives for a ward with consent from the court supervising the guardianship. Section 2106.13 calls the setoff estate assets but states no separate credit against a will gift, intestate share, or against-will election.

What trips people up

• The $40,000 is aggregate. Mixed-family and no-spouse cases divide one allowance; they do not multiply it by the number of children.
• The five-month clock is not universal wording for every family structure. Section 2106.13(D) attaches it when the probate court must allocate the award.
• A single selected automobile does not trigger the reduction. The current text says the spouse must have selected more than one automobile.
• Form choice follows the family tree. Form 7.1 expressly says to use Form 7.2 when a minor child is not the spouse's child or when there is no spouse and more than one minor child.

Common questions

Does Ohio require a separate creditor claim for the allowance?

No. Section 2117.25 says an allowance-for-support claim need not be presented. The fiduciary instead uses the probate allowance procedure.

What does the court consider in a mixed-family allocation?

The court considers the needs of the spouse, minor children who are the spouse's children, and minor children who are not. It allocates the spouse's share and the other children's shares equitably in light of those needs.

Can a guardian waive a minor child's share alone?

Not without court consent. Section 2106.13(E) permits a guardian's waiver only with the consent of the court that has jurisdiction over the guardianship.

Statutes and sources

• Ohio Rev. Code § 2106.13 — claimant classes, $40,000 aggregate amount, distribution, needs analysis, five-month allocation filing, vehicle reduction, estate-asset treatment, payment, and waiver. “The administrator or executor shall pay the allowance for support” unless the statutory waiver applies. Official enrolled H.B. 7 text (accessed 2026-08-03).
• Ohio Rev. Code § 2117.25 — payment order, ratable same-class shortfall, and no creditor-claim presentation. “(3) The allowance for support made to the surviving spouse, minor children, or both.” Official enrolled H.B. 59 text (accessed 2026-08-03).
• Ohio Standard Probate Form 7.1 — fiduciary application for the nonallocation structures and seven-day entry service. Official Form 7.1 (accessed 2026-08-03).
• Ohio Standard Probate Form 7.2 — fiduciary allocation application, hearing, seven-day certified-mail notice, and seven-day entry service. Official Form 7.2 (accessed 2026-08-03).