“Family” is more complicated today than it was a generation or two ago. Whether it’s a same-sex couple who adopted, an unwed couple raising children, estranged parents who stay together to raise their kids, or married couples who have separated but remain married, the evolving definition of the modern family presents unique challenges for estate planning attorneys.
The changing concept of the modern family creates situations in which you may wish to exclude someone from your Last Will and Testament. Unless that person is your spouse or a child, it’s fairly easy to disinherit someone from your Will. If you do not include someone in your Last Will and Testament, that person will not receive anything. And if you want to be sure to disinherit someone from your Will, it’s best to specifically disinherit that person by stating that you intentionally are not including that person in your Will.
If you want to exclude a spouse from your Will, however, that is another matter.
Typically, your spouse is the major beneficiary of your Last Will and Testament. While people generally have the right to control what happens to their estate after their death, Ohio has a public policy that makes it difficult to exclude a spouse from your Will. If one spouse disinherits another, the surviving spouse could be left with nothing and would become a drain on the resources of the State.
For that reason, Ohio has enacted a concept called the elective share. Under Ohio’s elective share laws the surviving spouse can choose to reject what their spouse left them in the Will and instead take what they would have received under Ohio’s laws of intestacy.
The laws of intestacy govern what happens to a person’s estate if they die without a Will. While there are some nuances about who takes what under Ohio’s intestacy laws, your estate will generally pass to your spouse and children.
If you exclude a spouse in your Will, your spouse is still eligible to receive a portion of your estate under the elective share. If you have one child, your spouse is entitled to up to one-half of the value of your estate. If you have two or more children, your spouse is entitled to one-third of the value of the estate.
If you were excluded from your spouse’s Will and wish to take your elective share, it’s important that you notify the probate court handling your deceased spouse’s estate. The process of taking the elective share is a complicated one that should not be attempted without the assistance of an experienced Ohio estate planning and probate attorney.
Be aware that there are other ways to limit what a surviving spouse receives. The most common ways to limit what a surviving spouse receives are through a prenuptial agreement, a post-nuptial agreement, or a trust. These estate planning devices are not used to punish a surviving spouse, but rather are intended to protect the interests of other parties, such as children from a prior marriage.
If your spouse died and left you with nothing in the Will, or if you want to exclude a spouse from your Will, it’s important that you hire an Ohio attorney who understands Ohio probate law and has experience practicing in this complicated field.
I have more than 20 years experience providing probate and estate planning services to people throughout greater Columbus, including Dublin, Bexley, Upper Arlington, New Albany, Marysville, Hilliard, Delaware, and Newark, and throughout Franklin County, Delaware County, Pickaway County, Fairfield County, Union County, and Licking County. Call (614) 263-5297 any time or complete our online form.