Spousal Elective Share Requirements in Ohio

At a glance

Requirements one by one

Governing system and who may elect

Ohio gives the surviving spouse a choice between the will and the intestate share under R.C. 2105.06. After the first executor or administrator is appointed, the probate court issues a citation describing the spouse's Chapter 2106 rights. The spouse may waive service only through a written court filing that acknowledges receipt of the required rights description.

Ordinarily, the spouse makes the against-will election personally. Section R.C. § 2106.07 permits an application for a commission directing a suitable person to take the election and explain both sets of rights. If legal disability prevents the spouse from electing, § 2106.08 requires a court-appointed investigation; the court may choose the intestate route only if it finds that choice necessary to provide adequate lifetime support after considering the listed resources and needs.

Share amount and estate base

The share starts with the applicable R.C. § 2105.06 intestate branch, then § 2106.01(C) imposes a hard net-estate cap. The maximum is one-half unless two or more of the decedent's children or their descendants survive; with two or more, the maximum is one-third. There is no marriage-duration schedule.

For example, with a $600,000 net estate and two surviving children, the cap is $200,000. With no children or one surviving child, the cap is $300,000, even where § 2105.06 would give the spouse a larger intestate amount.

The statute uses the decedent's net estate rather than a listed augmented estate. The cited election provisions do not enumerate revocable trusts, beneficiary designations, survivorship property, or other nonprobate transfers as components of the calculation or as contribution sources.

Deductions, taxes, and effect

Section 2106.01(C) supplies a tax-timing rule rather than a detailed valuation code: determine the net estate before paying federal estate tax, Ohio Chapter 5731 estate tax, or another tax apportioned under R.C. 2113.86 or 2113.861. The cited election sections give no separate valuation date.

Electing under R.C. 2105.06 is a refusal to take under the will. Unless the will expressly blocks acceleration, the balance of the net estate is disposed of as though the spouse died before the testator. Section 2106.01(B) also allows a separate mansion-house election when the property received by the spouse meets the statutory value threshold stated there.

Deadline, extension, and court procedure

The ordinary deadline is five months after the initial appointment of an executor or administrator. A good-cause extension requires a motion filed before that period expires. If a proceeding for advice or a will contest begins within the election period and the will is not set aside, the spouse may elect within three months after the proceeding's final disposition. Chapter 2106 states no withdrawal procedure.

If the spouse does nothing by the deadline, the law conclusively treats the spouse as electing under the will. An against-will election is made in person, after the will and both choices have been explained, and the election is entered on the court's journal. Current Supreme Court Form 8.2 provides the spouse's election and signature plus the probate judge or magistrate's certification; it does not contain a notary block, valuation schedule, service certificate, or attachment list.

Agreements affecting the election

Chapter 2106 does not prescribe a standalone elective-share waiver form. R.C. § 2106.22 instead gives an unusually short challenge clock: an antenuptial, postnuptial, or separation agreement to which the decedent was a party is valid unless an action to set it aside begins, or its validity is otherwise attacked, within four months after appointment of the executor or administrator.

For an agreement between spouses governed by R.C. § 3103.061, enforceability requires a writing signed by both spouses, free execution without fraud, duress, coercion, or overreaching, full disclosure or full knowledge and understanding of both spouses' property, and terms that do not promote divorce or profiteering by divorce.

What trips people up

• The deadline runs from fiduciary appointment. It is not five months after death, probate of the will, or receipt of the citation.
• Silence selects the will. Missing the deadline creates a conclusive presumption that the spouse elected under the will.
• The cap changes at two children or descendant lines. One or none means a one-half ceiling; two or more means one-third.
• Agreement challenges have a different clock. Section 2106.22's four-month period can expire before the five-month election period.

Common questions

Can the spouse simply sign an election at home? The ordinary against-will route is in person after a probate judge or authorized court officer explains the will and both choices. Section 2106.07 supplies a court-commission route on application.

Can the court extend the deadline after five months have passed? The ordinary good-cause motion must be filed before the five-month period expires. The separate three-month rule applies when a qualifying will proceeding began within the original period.

What happens if the spouse cannot make the decision because of disability? The probate court appoints a suitable investigator and may elect the intestate route only after the adequate-support finding required by § 2106.08.

Statutes and sources

• R.C. 2106.01(A)–(E) — citation, share caps, tax timing, acceleration, deadline, extensions, default result, and journal entry. Current official authenticated section (accessed 2026-08-02).
• R.C. 2105.06(B)–(E) — descendant-based intestate branches used by the election. Current official authenticated section (accessed 2026-08-02).
• R.C. 2106.06–.07 — in-person explanation and commission route. Current official authenticated § 2106.06 (accessed 2026-08-02).
• R.C. 2106.08 — legal-disability investigation, support finding, and court election. Current official authenticated section (accessed 2026-08-02).
• R.C. 2106.22 — four-month agreement-challenge period. Current official authenticated section (accessed 2026-08-02).
• R.C. 3103.061 — current statutory safeguards for agreements between spouses. Current official authenticated section (accessed 2026-08-02).
• Ohio Probate Form 8.2 — official against-will election and in-person court certification. Supreme Court of Ohio form (accessed 2026-08-02).