The Surviving Spouse's Election Against The Will Must Be Made To The Probate Judge Within Five Months of the Appointment of the Fiduciary of the Estate Or Forever Barred

The Ohio Revised Code requires that a surviving spouse make their election in the presence of the Probate Judge to take pursuant to the laws of intestacy rather than pursuant to the decedent's last will and testament within five months of the date of the appointment of the estate fiduciary, or make a request for additional time prior to the expiration of the five month period. In this estate, the court set a hearing for the surviving spouse to make his election against the will within the statutory five month period. In the meantime, counsels for the estate and the surviving spouse exchanged correspondence indicating the surviving spouse's intention to elect against the decedent's Will and exchanging the estate's inventory and appraisal. The court's original hearing to elect against the Will was continued until a date after the five month period to elect against the decedent's Will. The hearing went forward after the expiration of the five month period and in the presence of the probate magistrate, the surviving spouse elected against the Will. The estate filed a motion to set aside the election as in violation of the five month statute of limitations. The trial court denied the estate's motion, indicating that they had sua sponte extended the statutory limitations period due to the inventory's recent approval. On appeal, the trial court's decision was reversed because the court does not have the discretion or authority to sua sponte extend a statutory period of limitations for the surviving spouse to elect against the will and therefore the extension of time was legally invalid. The burden is upon the electing party to either make their election within the five month time frame or move the court for additional time to make the election.