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Spousal Elective Share Law in Ohio

In Ohio, a surviving spouse can elect to take the intestate share instead of the will, capped at one-half of the net estate (one-third if two or more children or their descendants survive), within 5 months after the executor or administrator is first appointed.

Last checked . General information, not legal advice.

Ohio at a glance

Elective share
Intestate share, up to 1/2 of net estate (1/3 with 2+ children)
The spouse takes under the intestacy statute: not more than one-half of the net estate, or one-third if two or more children or their descendants survive.
Deadline to elect
5 months after executor or administrator is appointed
The court may allow more time on a motion filed before the 5 months run. If nothing is filed, the spouse is presumed to take under the will.
Community property state
No
Not on the IRS list of community property states.

Sources

Last checked

The rules in Ohio

How much can a surviving spouse claim in Ohio if left out of the will?

Elective share in Ohio: Intestate share, up to 1/2 of net estate (1/3 with 2+ children). The spouse takes under the intestacy statute: not more than one-half of the net estate, or one-third if two or more children or their descendants survive.

What is the deadline to claim the elective share in Ohio?

Deadline to elect in Ohio: 5 months after executor or administrator is appointed. The court may allow more time on a motion filed before the 5 months run. If nothing is filed, the spouse is presumed to take under the will.

Is Ohio a community property state?

No. Community property state in Ohio: no. Not on the IRS list of community property states.

Where do the Ohio spousal elective share laws come from?

The rules above come from Ohio Rev. Code 2106.01. Each source is linked on this page. We last checked them in October 2026.

What this means in practice

The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.

Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.

Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.

General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.