Detailed Answer
This discussion covers whether an heir or a surviving spouse can choose to take a life estate in real property instead of an intestate share under Ohio law. Generally, if a person dies without a will (intestate), Ohio Revised Code §2105.06 controls distribution. Intestate heirs receive their shares in fee simple; Ohio law does not permit anyone other than a surviving spouse under a will to convert an intestate share into a life estate.
Intestate Share (Fee Simple)
Under ORC §2105.06 each heir inherits a portion of the decedent’s assets outright. For example, if you are a child of a decedent who died intestate, you receive your fractional share free of life-estate restrictions. There is no option in the intestacy statutes to accept only a life estate.
Spousal Elective Share (Testate Estates)
If the decedent left a will, a surviving spouse may renounce the will’s provisions and claim an elective share under ORC §2106.13. That statute provides two main options:
- Fee Simple Share – an outright one-half or one-third of the net estate, depending on whether there are surviving descendants or parents.
- Life Estate in Real Property plus Personal Property – the spouse may instead choose to take 100% of the net personal property outright and a life estate in all real property the decedent owned. This election must be made within the time frame set by the probate court.
Because the elective-share statute applies only when a will exists, it does not affect pure intestacy. If no will exists, a surviving spouse cannot elect a life estate in lieu of an intestate fee-simple share.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific circumstances.
Helpful Hints
- Review Ohio Revised Code §2105.06 for intestate distribution rules: https://codes.ohio.gov/ohio-revised-code/section-2105.06
- Review Ohio Revised Code §2106.13 for spousal elective share options: https://codes.ohio.gov/ohio-revised-code/section-2106.13
- Understand that intestate heirs always take in fee simple; no life-estate election is available without a will.
- If you are a surviving spouse and there is a will, weigh the benefit of an outright share versus a life estate plus personal property.
- File any spousal election in the probate court before the deadline to preserve your rights.