Detailed Answer — How the process generally works under Ohio law
When a decedent’s will directs that the family home be sold and the proceeds distributed, but the surviving spouse will not cooperate, resolution depends on three facts you must determine first:
- Who actually owns title to the house right now? (Sole name of the decedent, jointly with the spouse, held as survivorship/joint tenancy, or already transferred outside probate.)
- Has someone been appointed estate representative (executor/administrator) and is there an open probate administration?
- Does the surviving spouse have statutory rights that affect disposition (for example a claim for a family allowance or an elective share)?
Typical paths depending on those facts:
1) House owned solely by the decedent and it is part of the probate estate
If the house is probate property (titled only in the decedent’s name), the personal representative named in the will or appointed by the probate court has authority to administer estate property. If the will directs sale, the representative can ask the probate court for an order authorizing sale of real estate and distribution of proceeds consistent with the will. If the spouse refuses to cooperate, the representative can file a motion in probate court asking the judge to:
- Confirm the representative’s authority to sell estate real property;
- Authorize and approve sale terms (private sale or sale at public auction); and
- Order distribution of net proceeds after debts and expenses.
Ohio statutory guidance about estate administration and the representative’s duties appears in the Ohio Revised Code, including chapter 2107 (administration and settlement of estates). See: Ohio Rev. Code Chapter 2107.
2) House is jointly titled with the surviving spouse (right of survivorship or joint tenancy)
If title is in both spouses’ names as joint tenants with right of survivorship (or otherwise passes automatically to the survivor), the house may not become probate property. A will cannot force the sale of property that passes outside probate by survivorship. In that case the spouse likely owns the house and cannot be compelled under the will to sell it unless there is a separate agreement or other legal basis.
If joint owners disagree about sale, a partition action in the common pleas court is a common remedy. Partition forces a physical division of property when possible or a sale and division of proceeds when division is impractical. Ohio’s partition rules are found in Chapter 5307 of the Ohio Revised Code: Ohio Rev. Code Chapter 5307 (Partition).
3) Surviving spouse’s statutory claims (elective share, family allowance, exempt property)
A surviving spouse in Ohio may have statutory protections that affect how much of the estate is available for distribution under the will. Common protections include a family allowance for support, exemptions for certain property, and the spouse’s right to elect against the will (elective share). Those rights can limit or change the net amount that gets distributed to beneficiaries. For statutory provisions related to allowances and spouse protections see: Ohio Rev. Code Chapter 2106.
Practical court steps if the spouse refuses to cooperate with sale directed by the will
- Confirm ownership and open probate if needed. If no personal representative has been appointed, file for probate administration so the court can appoint one.
- Ask the personal representative to file a petition in the probate court seeking authority to sell estate real property and to approve sale procedures and distribution consistent with the will.
- Provide notice to the surviving spouse and all interested parties. The court will give affected parties a chance to object and to assert any statutory claims (elective share, family allowance, or exemptions).
- If the spouse objects and title is in the estate, the court will decide whether the representative can sell. The judge may order sale if it is reasonable and in the estate’s best interest.
- If the property is jointly owned (not probate property) and the spouse refuses to sell, a partition action in the common pleas court is often the route to force a sale and divide proceeds according to ownership shares.
- If the spouse is using or occupying the home and objects, the court may also consider temporary orders about possession, rents, or accounting for income or expenses until sale.
Timing and practical issues
- Probate and court petitions take time. Expect weeks to months depending on complexity, objections, and court backlog.
- Creditors’ claims and estate expenses must be paid before distribution. The personal representative must follow probate notice requirements.
- If the spouse files an election or claims a statutory interest, distribution may change. The probate court resolves those claims.
- Litigation (for example a partition or a contested probate claim) increases costs and reduces net proceeds available to beneficiaries.
When you may be able to act without court intervention
- If the spouse agrees to sell, an estate sale can proceed under the representative’s supervision with court approval if required.
- Parties often settle by negotiation or mediation to split proceeds or buy out the spouse’s interest and avoid expensive litigation.
Key statutes and resources
- Administration and settlement of estates: Ohio Rev. Code Chapter 2107
- Allowance to surviving spouse and children and related statutory protections: Ohio Rev. Code Chapter 2106
- Partition actions (force sale of jointly owned real estate): Ohio Rev. Code Chapter 5307
Helpful Hints
- Document search checklist: obtain the death certificate, original will, deed, mortgage statements, insurance policy, and any trust documents. Title documents determine whether property is probate or nonprobate.
- Open probate early if the house appears to be probate property and the estate needs cash to pay debts or to make distributions.
- Ask the personal representative for an accounting and copy of filings. The representative has fiduciary duties to act in the estate’s and beneficiaries’ best interests.
- Before filing suit, consider mediation. A negotiated buyout of the spouse’s interest or scheduled sale terms can save time and fees.
- Be aware of deadlines. A surviving spouse’s election or claims can have strict time limits under Ohio law; beneficiaries also face deadlines to object to sales or accountings.
- Keep records of communications. If the spouse blocks access or refuses to cooperate, records help the court evaluate the situation.
- Get legal advice. Probate and property disputes involve procedural rules and statutory claims that materially affect outcomes. A probate or real estate litigator licensed in Ohio can explain options and file necessary motions.
Disclaimer: This article explains general Ohio legal procedures for informational purposes only. It is not legal advice, does not create an attorney-client relationship, and does not replace consulting a licensed attorney about the specific facts of your situation.