It is a common misconception is that if you don’t have a will, the State of Ohio inherits your estate — the legal term for this is “escheat.” It’s more accurate to say that if you don’t have a will, the state writes one for you: the law provides your estate will be distributed to your next of kin, and Ohio’s statute of descent and distribution — Revised Code Section 2105.06 — specifies who those people are.
The statute provides complicated formulas for dividing estates between surviving spouses and children in blended families, and stepchildren are next to last on the list (the complete pecking order is found at the end of this article).
In addition, if any of your children are under the age of 18, the law doesn’t provide for those children’s shares to be held in trust — courts instead require the costly appointment of a court-supervised guardian to hold onto those shares, turning over that inheritance only as your children turn 18.
Writing a will avoids these complications — as well as another, extremely rare problem our Ohio General Assembly recently tried to fix, but instead created a whole new mess in the process.
Senate Bill 207 added a new section to the code, Section 2105.062, effective on March 23, 2015. Previously, if a person died without a will, leaving no surviving spouse and no children, the law provided that a person’s estate would be distributed to parents, then to brothers and sisters, then to grandparents, and then to the lineal descendants of grandparents.
The new law creates an exception to this rule: section 2105.062 provides that a parent, or a relative of a parent, cannot inherit from the child if the child was conceived due to the parent’sviolation of laws prohibiting rape or sexual battery.
You heard right: for the 212 years that Ohio has been a state, if your were conceived by rape, and you died without a will leaving no spouse or children, the rapist would inherit half of your estate. While it’s better late than never that this loophole is closed, the legislature’s poor choice of wording may open a new and grisly can of worms.
Note that the new law uses the word violation, not conviction. Suppose a child were to pass away with a sizeable estate, leaving two divorced parents who despise one another. Could the mother argue that the father doesn’t inherit half the estate because the encounter that led to their child’s conception wasn’t consensual — even if no charges were ever filed?
Yes. And the Probate Court would have to decide, decades later, whether the fathering of a child was the result of rape or sexual battery.
To my knowledge, there was no rush of cases motivating our legislators in which rapists were rewarded with an inheritance. However, the lessons are clear:
1. The State of Ohio has the authority to decide who inherits from you if you don’t write a will, and
2. The State of Ohio has made and will continue to make terrible decisions for you.
Don’t trust the State of Ohio to write your will.
A SUMMARY OF OHIO’S STATUTE OF DESCENT AND DISTRIBUTION:
1. If you don’t have a surviving spouse, to your children or their lineal descendants (the law states “per stirpes,” a legal term which I’ll discuss in a future article).
2. If you have both a surviving spouse and children, it’s complicated.
a. If all your kids are also your spouse’s kids; everything goes to the spouse.
b. If you have one kid who isn’t also your spouse’s, your spouse gets $20,000.00 plus one-half of everything else, and your child gets the rest.
c. If you have more than one kid but only one is also your spouse’s, your spouse gets $60,000.00 plus one third of everything else, and the kids split the rest equally.
d. If you have more than one kid and none of them are also your spouse’s, your spouse gets $20,000.00 plus one third of everything else, and the kids split the rest equally.
3. If you have a spouse and no children, your spouse gets everything.
4. If there’s no spouse or children, to your parents or the survivor of them.
5. If neither parent survives, to your siblings (including half-siblings).
6. If there are no siblings or half-siblings, half to your paternal grandparents or the survivor of them, and half to your maternal grandparents or the survivor of them.
7. If there are no paternal grandparents surviving, one-half to their lineal descendants (aunts and uncles, then cousins and second cousins). If there are no maternal grandparents surviving, one-half to their lineal descendants.
8. To your stepchildren.
9. To the State of Ohio.