Ohio Rev. Code » Chapter 2106
Ohio Revised Code

Ohio Rev. Code § 2106.01 (2026)

Election by surviving spouse

✓ current as of May 2026
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Effective:
January 13, 2012
Latest Legislation:
Senate Bill 124 - 129th General Assembly
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(A) After the initial appointment of an administrator or executor of the estate, the probate court shall issue a citation to the surviving spouse, if any is living at the time of the issuance of the citation, to elect whether to exercise the surviving spouse's rights under Chapter 2106. of the Revised Code, including, after the probate of a will, the right to elect to take under the will or under section 2105.06 of the Revised Code.

A surviving spouse may waive the service of the citation required under this division by filing in the probate court a written waiver of the citation. The waiver shall include an acknowledgment of receipt of the description of the general rights of the surviving spouse required by division (B) of section 2106.02 of the Revised Code.

(B) If the surviving spouse elects to take under section 2105.06 of the Revised Code and if the value of the property that the surviving spouse is entitled to receive is equal to or greater than the value of the decedent's interest in the mansion house as determined under section 2106.10 of the Revised Code, the surviving spouse also is entitled to make an election pursuant to division (A) of section 2106.10 of the Revised Code.

(C) If the surviving spouse elects to take under section 2105.06 of the Revised Code, the surviving spouse shall take not to exceed one-half of the net estate, unless two or more of the decedent's children or their lineal descendants survive, in which case the surviving spouse shall take not to exceed one-third of the net estate.

For purposes of this division, the net estate shall be determined before payment of federal estate tax, estate taxes under Chapter 5731. of the Revised Code, or any other tax that is subject to apportionment under section 2113.86 or 2113.861 of the Revised Code.

(D) Unless the will expressly provides that in case of an election under division (A) of this section there shall be no acceleration of remainder or other interests bequeathed or devised by the will, the balance of the net estate shall be disposed of as though the surviving spouse had predeceased the testator. If there is a disposition by a will to an inter vivos trust that was created by the testator, if under the terms of the trust the surviving spouse is entitled to any interest in the trust or is granted any power or nomination with respect to the trust, and if the surviving spouse makes an election to take under section 2105.06 of the Revised Code, then, unless the trust instrument provides otherwise, the surviving spouse is considered for purposes of the trust to have predeceased the testator, and there shall be an acceleration of remainder or other interests in all property bequeathed or devised to the trust by the will, in all property held by the trustee at the time of the death of the decedent, and in all property that comes into the possession or under the control of the trustee by reason of the death of the decedent.

(E) The election of a surviving spouse to take under a will or under section 2105.06 of the Revised Code may be made at any time after the death of the decedent, but the surviving spouse shall not make the election later than five months from the date of the initial appointment of an administrator or executor of the estate. On a motion filed before the expiration of the five-month period, and for good cause shown, the court may allow further time for the making of the election. If no action is taken by the surviving spouse before the expiration of the five-month period, it is conclusively presumed that the surviving spouse elects to take under the will. The election shall be entered on the journal of the court.

When proceedings for advice or to contest the validity of a will are begun within the time allowed by this division for making the election, the election may be made within three months after the final disposition of the proceedings, if the will is not set aside.

(F) When a surviving spouse succeeds to the entire estate of the testator, having been named the sole devisee and legatee, it shall be presumed that the spouse elects to take under the will of the testator, unless the surviving spouse manifests a contrary intention.
Notes of Decisions
Cited in 14 cases (4 in the last 5 years), 1994–2025 · leading case: In Re Est. of Riley, 847 N.E.2d 22 (Ohio Ct. App. 2006).
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In Re Est. of Riley, 847 N.E.2d 22 (Ohio Ct. App. 2006). · cites it 4× “” Enclosed with the citation was a “Summary of General Rights of Surviving Spouse” and an explanation of the R.C. 2106.01 right to take against a will.”
Dumas v. Est. of Dumas, 627 N.E.2d 978 (Ohio 1994). · cites it 3× “R.C. 2106.01, formerly R.C. 2107.39, allows a surviving spouse who is not sufficiently provided for in a deceased spouse’s will to elect against the will and instead receive a specified share of the deceased spouse’s estate.”
Dumas v. Est. of Dumas, 1994 Ohio 312 (Ohio 1994). · cites it 3× “R.C. 2106.01, formerly R.C. 2107.39, allows a surviving spouse who is not sufficiently provided for in a deceased spouse's will to elect against the will and instead receive a specified share of the deceased spouse's estate.”
In Re Est. of Reddick, 657 N.E.2d 531 (Ohio Ct. App. 1995). · cites it 2× “Thus, according to R.C. 2106.01 and 2106.04, appellee is presumed to have taken under the will.”
In re Est. of Woods, 2011 Ohio 1831 (Ohio Ct. App. 2011). · cites it 4× “04 provides: {¶ 17} “If the surviving spouse dies before probate of the will, or, having survived the probate, thereafter either fails to make the election provided by section 2106.01 of the Revised Code or dies without having made an election within the times described in…”
In re The Est. of Adams, 2013 Ohio 5824 (Ohio Ct. App. 2013). · cites it 4× “{¶13} Moreover, R.C. 2106.01(E) specifically addresses the timeframe for a surviving spouse to elect to take against the will.”
In Re Est. of Pendleton, 753 N.E.2d 237 (Ohio Ct. App. 2001). · cites it 4× “08, which provides: “If, because of a legal disability, a surviving spouse is unable to make an election as provided by section 2106.01 of the Revised Code, as soon as the facts come to the knowledge of the probate court, the probate court shall appoint some suitable person to…”
In re Est. of Cvanciger, 2015 Ohio 4318 (Ohio Ct. App. 2015). · cites it 2× “Starlin, as required by R.C. 2106.01, “citing” him to exercise his statutory rights as a surviving spouse.”
In re Est. of Weitzel, 2021 Ohio 1859 (Ohio Ct. App. 2021). · cites it 12× “See R.C. 2106.01, 2106.13, 2106.15, and 2106.”
Marinakis v. Marinakis, 2025 Ohio 2555 (Ohio Ct. App. 2025). · cites it 2× “{¶ 12} Following Bill's death, Evonne filed an election to take her spousal share against his will under R.C. 2106.01(A), in the amount of one-third of the net estate.”
Gayheart v. Doe, 758 N.E.2d 1162 (Ohio Ct. App. 2001). “06 establishes the rights of a *698 surviving spouse in the deceased spouse’s property, while R.C. 2106.01 et seq. provides a means for a spouse to enforce his or her rights in the deceased spouse’s property.”
Est. of Hatcher-Hamilton v. Hamilton, 2022 Ohio 1834 (Ohio Ct. App. 2022). “Hamilton’s rights under Sections 2106.01 and 2106.13, including his entitlement to the $40,000.”
Show all 14 citing cases →
— Ohio Rev. Code § 2106.01(A) — 4 cases
In Re Est. of Riley, 847 N.E.2d 22 (Ohio Ct. App. 2006). “” Enclosed with the citation was a “Summary of General Rights of Surviving Spouse” and an explanation of the R.C. 2106.01 right to take against a will.”
In re Est. of Woods, 2011 Ohio 1831 (Ohio Ct. App. 2011). “04 provides: {¶ 17} “If the surviving spouse dies before probate of the will, or, having survived the probate, thereafter either fails to make the election provided by section 2106.01 of the Revised Code or dies without having made an election within the times described in…”
Marinakis v. Marinakis, 2025 Ohio 2555 (Ohio Ct. App. 2025). “{¶ 12} Following Bill's death, Evonne filed an election to take her spousal share against his will under R.C. 2106.01(A), in the amount of one-third of the net estate.”
In re Est. of Weitzel, 2021 Ohio 1859 (Ohio Ct. App. 2021). “See R.C. 2106.01, 2106.13, 2106.15, and 2106.”
— Ohio Rev. Code § 2106.01(C) — 2 cases
Dumas v. Est. of Dumas, 627 N.E.2d 978 (Ohio 1994). “R.C. 2106.01, formerly R.C. 2107.39, allows a surviving spouse who is not sufficiently provided for in a deceased spouse’s will to elect against the will and instead receive a specified share of the deceased spouse’s estate.”
Dumas v. Est. of Dumas, 1994 Ohio 312 (Ohio 1994). “R.C. 2106.01, formerly R.C. 2107.39, allows a surviving spouse who is not sufficiently provided for in a deceased spouse's will to elect against the will and instead receive a specified share of the deceased spouse's estate.”
— Ohio Rev. Code § 2106.01(E) — 5 cases
In Re Est. of Riley, 847 N.E.2d 22 (Ohio Ct. App. 2006). “” Enclosed with the citation was a “Summary of General Rights of Surviving Spouse” and an explanation of the R.C. 2106.01 right to take against a will.”
In re The Est. of Adams, 2013 Ohio 5824 (Ohio Ct. App. 2013). “{¶13} Moreover, R.C. 2106.01(E) specifically addresses the timeframe for a surviving spouse to elect to take against the will.”
In Re Est. of Reddick, 657 N.E.2d 531 (Ohio Ct. App. 1995). “Thus, according to R.C. 2106.01 and 2106.04, appellee is presumed to have taken under the will.”
In re Est. of Woods, 2011 Ohio 1831 (Ohio Ct. App. 2011). “04 provides: {¶ 17} “If the surviving spouse dies before probate of the will, or, having survived the probate, thereafter either fails to make the election provided by section 2106.01 of the Revised Code or dies without having made an election within the times described in…”
In re Est. of Weitzel, 2021 Ohio 1859 (Ohio Ct. App. 2021). “See R.C. 2106.01, 2106.13, 2106.15, and 2106.”
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