Updated September 5, 2026. Quick answer: Ohio’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. 1/2 of the net estate; or 1/3 of the net estate if two or more of the decedent’s children (or their lineal descendants) survive
What Ohio actually sets out
| What the statute sets out | What it says |
|---|---|
| Ohio Rev. Code Sec. 2106.01 | “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.” |
| The share and what it is measured against | 1/2 of the net estate; or 1/3 of the net estate if two or more of the decedent’s children (or their lineal descendants) survive; measured against net estate; essentially the probate estate, reduced by allowed charges/debts; no augmented-estate reach-in to trusts, PODs, or life insurance. |
| Regime type | flat fraction, not tied to marriage length |
| Can it be waived | waivable by antenuptial or postnuptial agreement (written, signed, voluntary, full financial disclosure) |
| Time limit to file | not later than 5 months from the date of the initial appointment of an administrator or executor |
How it works in practice
- The share is measured against net estate; essentially the probate estate, reduced by allowed charges/debts; no augmented-estate reach-in to trusts, PODs, or life insurance.
- Partially. This state’s formula is limited to the property described above, which does not reach a properly funded revocable trust the same way an augmented-estate state’s formula does, so trust planning can change the outcome here specifically, though it does not change the analysis in a state with an augmented-estate formula.
- Waiver: Waivable by antenuptial or postnuptial agreement (written, signed, voluntary, full financial disclosure).
- The election has to be affirmatively filed on a deadline: not later than 5 months from the date of the initial appointment of an administrator or executor.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Ohio specifically, and its own numbers above should be used instead of the calculator’s national default for a Ohio estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This citation and figure were fetched directly from the state’s own official code site and read against the current text this session.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Ohio is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.