Citation. In re Estate of Cross, 664 N.E.2d 905, 75 Ohio St. 3d 530 (Ohio June 5, 1996)
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Brief Fact Summary.
Beulah Cross, the surviving spouse of Caroll R. Cross, lived in an nursing home paid by Medicaid. To be eligible for Medicaid, Cross had to make herself available to all income that she might potentially be entitled to receive. A judge allowed Cross to take her intestate share of her husband’s estate against the will and Cross’s son appealed.
Synopsis of Rule of Law.
Taking against the will is necessary for a surviving spouse under a statute that provides for a court to make an election on behalf of the surviving spouse to take against the will if it finds, after taking into consideration the other available resources and the age, probably life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the disabled surviving spouse, that the election to take under the will is necessary to provide adequate support for the surviving spouse during his life expectancy.
Beulah Cross, the surviving spouse of Carroll R. Cross, lived in a nursing home paid by Medicaid. Cross suffered from Alzheimer’s disease. Because of her lack of mental competency, she could not elect to take her intestate share against her late husband’s will. As a result of the election, she would receive $25,000 and half of his net estate which was $9,000. A statue allowed Courts to elect for a surviving spouse to take if the surviving spouse was disabled. The Court made the election and Cross’s son appealed. He argued that the election was not necessary because Medicaid was covering her expenses.
Whether the trial judge abused his discretion by electing for a surviving spouse to take her intestate share against a will?
No. The trial judge acted in the best interests of the surviving spouse. Even though Medicaid paid for her nursing care, she was required to make herself available to all income to remain eligible for Medicaid. Under the rule allowing the surviving spouse to take against the will, her intestate share was potential income. The election was necessary for her support. Furthermore, the Legislature intended for a surviving spouse to have the right to take her intestate share. The surviving spouse’s disability should not be a bar to her receiving proper welfare during her life.
The Court elected for the surviving spouse to take her intestate share because there was a risk that Medicaid would not continue covering her expenses for her because of the statute.