Inheriting While Divorcing

By February 26, 2021divorce

In our last post, we considered how signing a prenuptial agreement could have protected Larry King’s window, Shawn Southwick King, who was in the middle of a divorce when her husband died. According to the media, Larry signed a handwritten will two months after filing for divorce that left his entire estate to his children. Mrs. King received nothing.

Unfortunately, Mrs. King had no prenuptial agreement. But does that mean she still does not have inheritance rights? If she lived in Ohio, she certainly would. Divorce and inheritance are creatures of state law, so a person’s rights differ depending on where they live. Mrs. King lives in California, and we can’t speak to that state’s law. But we can explain what would have happened if she and Larry were domiciled in Ohio.

What is the Elective Share?

When a person dies without a will, they die “intestate.” That’s the legal term, and Ohio has created laws that determine how an intestate person’s estate gets divided. Under our laws, a spouse will receive the entire estate if there are no children. If the decedent and the spouse had kids, the surviving spouse still takes the entire estate. However, if there are step-children, then the surviving spouse takes less—roughly one-half or one-third, depending on the number of children.

Ohio is also worried about spouses getting disinherited, meaning they are left nothing (or very little) in the will. Because there is a valid will, the intestacy laws do not apply. However, any disinherited spouse could end up on public assistance and be a burden to the taxpayer.

For this reason, Ohio has followed other states by creating something called an “elective share” right. It’s pretty simple. Under this law, a surviving spouse gets to choose between:

  • What is left to them in the will.
  • What they would have inherited had there been no will.

Larry King lived in California, which does not have an elective share law. But had he lived in Ohio, Shawn would have the option of taking a portion of the estate. As you can see, the elective share law would have protected her from being disinherited.

Divorce & the Elective Share

But what happens if a couple is divorcing? Does a husband or wife lose their right to an elective share as soon as divorce or dissolution paperwork is filed?

No. Simply filing for divorce is not the same as actually getting a divorce decree. Until you are divorced, you are still technically married. This means that a surviving spouse has inheritance rights even if the will tries to disinherit them.

There is good reason for this rule—and Larry King’s life illustrates it. Back in 2010, Larry filed divorce paperwork to end his marriage to Shawn. However, the couple quickly reconciled, and Larry withdrew his court petition. This is always a possibility in any divorce, so there is no reason to assume a couple will actually divorce until the judge issues the decree.

If you are considering divorce, you should pick up the pace in the event you die before the process is finalized. Any delay can make a big difference.

Making a Timely Election

Ohio law gives the spouse up to 5 months to decide whether to accept what is given in the will or exercise their right to an elective share. The clock starts ticking on the date the administrator or executor is appointed. If the spouse needs more time to think it over, he or she must file a motion before the deadline and request an extension.

Support Allowance & Assets

Ohio also has a law that provides for support for a surviving spouse. Specifically, Ohio Revised Code § 2106.13 allows a spouse to receive up to $40,000 if they have no minor children or if all the minor children were also the children of the decedent. When there are minor step-children, the surviving spouse will receive less.

A surviving spouse can also take two vehicles from the estate. However, the value of the lower-value vehicle gets deducted from the $40,000 support allowance. So if the vehicles are valued at $20,000 and $10,000, then support allowance is capped at $30,000.

Ohio also allows a spouse to stay in their home for up to a year rent-free in most situations. Nevertheless, the home can be sold to cover estate debts.

Contact Our Law Firm to Review Your Options

Deciding whether to take an elective share is a complicated decision. We encourage anyone who was unhappy with what their spouse left them to reach out to Lawrence Law Office today. We can review the validity of the will and your rights.

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