What are a wife’s rights to her husband’s estate?

UPDATED: Jan 14, 2011

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What are a wife’s rights to her husband’s estate?

I have a family member whose husband recently died. She was his second wife; they were married for 30 years. He put his biological kids as executors. Apparently put his wife on an allowance and other restrictions on the estate such as not being able to donate to charity. His kids are talking like they will “manage” her finances and estate proceeds now until she passes. Do they have this right? Was her husband allowed to put her on an allowance in his Will and put restrictions on her? Does she have a right to an elective share in OH? Can they wait until she dies then collect what’s left?

Asked on January 14, 2011 under Estate Planning, Ohio


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I am so sorry for her loss and for her situation.  It is my understanding that Ohio still does give the wife the right of elective share against the Will of her late husband.   The law on what can and can not be elected against, though, has been changing on these issues and you should have your family member consult with an attorney in her area.  Generally speaking, a wife has an elective share against the Will of her husband for those assets that are part of his probate estate.  Some assets are not part of the probate estate.  Life Insurance with a named beneficiary is an example of a non-probate asset.  An elective share is what his wife would have gotten under the intestacy statute: a sum certain plus one third of the probate estate.  Seek legal help.  Good luck.  

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