Election For The Surviving Spouse To Purchase Real Estate At Appraised Value
A surviving spouse has a right to elect to remain in the “mansion house” rent free for a period of one year following the death of a spouse, unless the property must be sold to pay debts.
If a sale is necessary before the expiration of the one year term the surviving spouse must be compensated from the sale proceeds for the loss of the full term at the fair rental value for the property as provided in RC 2106.15. Payment of this compensation has the same priority as the support allowance. Applying this code section requires special care.
A surviving spouse also has a right to elect to receive the mansion house as part of the spouse’s share of an intestate estate and the allowance of support as provided in RC 2106.10. The valuation calculations are set forth in the statute. The death of the spouse before making the election terminates the right to make the election as no other person can make it for the spouse or the spouse’s estate. Applying this code section requires special care.
The surviving spouse also has another important interest in the “mansion house” that may only be exercised within a very narrow window of time and under specific conditions. If the property has not been specifically devised or bequeathed in the will, a petition may be filed by the surviving spouse indicating an election to purchase the “mansion house” real estate at the value it has been appraised in the estate. The statute (RC 2106.16) specifies what the election filing must contain. The election to purchase complaint by the surviving spouse will be opened as a companion case to the estate case. The statutory definition of “mansion house” should be reviewed as it may include the decedent’s household goods located in the home as well as adjacent lots or farm land used with it as the decedent’s home. The death of the spouse prior to the filing of the Court’s entry establishing the terms of payment nullifies the election.
Items Necessary to File an Election Complaint by the Surviving Spouse to Purchase Real Estate (the Mansion House) at Appraised Value
- Prepare an election in Complaint format to be filed by the Surviving Spouse;
- The Complaint must contain:
- An affirmative statement of the election of surviving spouse to purchase at appraised value;
- The legal Description of real estate to be purchased with County Engineer’s Map Department stamp of approval of the description of the “Mansion House” property;
- Join as defendants the fiduciary and interested parties including the mortgagee and other lien holders to be notified; include a prayer of the surviving spouse for the Court to issue an order confirming the election to purchase; (per statute spouses of defendants need not be joined);
- Attach a copy of the Inventory and Appraisal that was filed in general estate case that includes the mansion house property; and
- The Complaint CANNOT be filed until after the Inventory and Appraisal has been filed and not more than one month after approval of the Inventory.
- The Complaint must contain:
- File written request for service and copies of the Complaint on each party requiring service;
- The base court cost deposit is one hundred sixty dollars ($160.00);
- If an Answer to the Complaint is filed, the Complaint will be set for a hearing and notice of the hearing date will be given to all parties in interest, not in default of Answer;
- Obtain an Entry on the Complaint that states:
- Finds in favor of the surviving spouse, upon a finding that it does not appear that the appraisal was made as a result of collusion or fraud and that it is not so manifestly inadequate that a sale at that price would unconscionably prejudice the rights of the parties in interest or creditors;
- Fixes the terms of payment to the executor or administrator for the property, having regard for the rights of creditors of the estate;
- Orders the executor or administrator, or a commissioner appointed to act as the conveying fiduciary, to transfer the property to the spouse upon compliance with the terms fixed by the Court; and
- Dispenses with additional bond or order additional bond, depending on the decedent’s will.
- Issue a fiduciary’s deed to surviving spouse for transfer and recording; and
- Make a final return of sale or file a report of distribution with the Court.