An elective share is a term used relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It has also been called a widow's share, statutory share, election against the will, or forced share.
The election rights of a spouse are governed by state laws, which vary by state. Under such laws, the surviving spouse has historically had the option of either:
1. Accepting what was provided to him or her pursuant to the decedents will; or
2. Electing to take a fixed portion of the decedents probate estate property.
The right of election of a surviving spouse may be waived, wholly or partially, by a written agreement, or by a waiver signed by the surviving spouse. A valid waiver by a surviving spouse of a right of election against a will must meet three requirements:
1. It must be in the form of a written contract or agreement;
2. It must be signed by the party waiving the right; and
3. There must have been fair disclosure.
A waiver of the right to election by a spouse is a legal document commonly used in estate planning and probate administration in Ohio. It is designed to ensure that specific provisions of an individual's estate plan are followed after their demise, without interference from the surviving spouse's statutory right to elect against the will or take certain property as provided by law. In Ohio, when a person passes away, their surviving spouse has the right to elect against the will and claim a portion of the deceased spouse's estate under Ohio Revised Code Section 2106.01. This provision allows the surviving spouse to claim one-third of the deceased spouse's net estate, or, if the deceased spouse was survived by children, one-third of the augmented estate. However, to prevent the surviving spouse from exercising this statutory right and to ensure that the deceased's intended beneficiaries receive their intended inheritance, the Ohio Waiver of Right to Election by Spouse can be utilized. There are two main types of Ohio waivers of the right to election, each having its own specific purpose and effect: 1. Premarital or prenuptial agreements: Before entering into marriage, couples can draft a prenuptial agreement that includes a waiver of the right to election by the surviving spouse. This agreement specifies that neither party will seek the statutory share upon the other's death, and instead, the distribution of assets will be governed by the terms outlined in the agreement. 2. Post-marital or postnuptial agreements: These agreements are similar to prenuptial agreements, with the key difference being that they are entered into after the couple is already married. Post-marital agreements can be used to modify or clarify existing rights and obligations between spouses, including the waiver of the right to election by the surviving spouse. By using either a prenuptial or postnuptial agreement that contains a waiver of the right to election, individuals can protect their intended beneficiaries from any potential claims by the surviving spouse, ensuring that their assets are distributed according to their wishes. It is important to note that while these waivers are useful in estate planning, they must be drafted carefully and meet all legal requirements to be enforceable. Therefore, it is advisable to consult with an experienced attorney who specializes in estate planning and probate law to ensure that the Ohio Waiver of Right to Election by Spouse is properly implemented.
