Updated October 8, 2026. Quick answer: No. Ohio is a common law state. At divorce, Ohio Revised Code section 3105.171 says the court “shall divide the marital and separate property equitably between the spouses”, and the surviving spouse has an election at death. The IRS lists nine community property states.
Ohio community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | Marital property is divided equally unless that would be inequitable, then equitably (ORC 3105.171) |
| At a spouse’s death | The probate court cites the survivor to elect whether to take under the will or the statute (ORC 2106.01) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Ohio Legislative Service Commission; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Ohio statutes say
Ohio’s statute is headed equitable division of marital and separate property, and it uses the terms marital property and separate property. It adds a default: “the division of marital property shall be equal”, unless equal division would be inequitable, in which case the court divides the property in the way it determines equitable.
At divorce in Ohio
Separate property stays with its owner: “the court shall disburse a spouse’s separate property to that spouse”.
At a spouse’s death in Ohio
Section 2106.01, headed “Election by surviving spouse.”, has the probate court issue a citation “to elect whether to exercise the surviving spouse’s rights” under the chapter, including taking under the will or under section 2105.06.
What it does to basis when the first spouse dies
Because Ohio is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose an Ohio couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The documents read do not state a rule for a couple who moved to Ohio.
Common mistakes
- Reading the equal-division default as a guarantee; the statute lets the court depart from it when equal division would be inequitable.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: community property states by state, why only half steps up in a common law state, Ohio retirement taxes, and Ohio probate cost.
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Answer againSources
- Section 3105.171 Equitable division of marital and separate property, Ohio Revised Code: https://codes.ohio.gov/ohio-revised-code/section-3105.171
- Section 2106.01 Election by surviving spouse, Ohio Revised Code: https://codes.ohio.gov/ohio-revised-code/section-2106.01
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.