[Cite as In re Estate of Woods, 193 Ohio St.3d 371, 2011-Ohio-1831.]




                 IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

                                                       :

IN RE ESTATE                                           :      C.A. CASE NO. 2010-CA-0073
OF WOODS; PROFITT,
APPELLANT.                                             :      T.C. CASE NO. 39893-10-142

                                                       :      (Civil Appeal from
                                                              Common Pleas Court,
                                                       :      Probate Division)

                                                 .........

                                               OPINION

                               Rendered on the 15th day of April, 2011.

                                                 .........

Thomas W. Simms, for appellant.

Lester L. Ferguson, for appellee.

                                                 .........

        GRADY, Presiding Judge.

        {¶ 1} Fred Profitt, executor of the estate of Lena Geraldine Woods, appeals from an

order of the probate court finding that Pleasie Woods Jr.’s election to take against Lena’s will

pursuant to R.C. 2105.06 was valid and binding.

        {¶ 2} Lena Geraldine Woods was married to Pleasie Woods. Lena1 died testate on

February 24, 2010. Her will was admitted to probate on March 18, 2010, and Fred Profitt was

appointed executor of her estate. In her will, Lena stated: “My spouse is Pleasie Woods, Jr.


             1
                 For purposes of clarity and convenience, we will refer to the decedents by their first names.
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I deliberately make no provision in my will for my Spouse for reasons personal to me.”

       {¶ 3} On March 26, 2010, Pleasie was served with the court’s “Citation to Surviving

Spouse to Exercise Elective Rights” and a “Summary of General Rights Of Surviving Spouse.”

Pleasie died on May 3, 2010. On May 12, 2010, the executor of his estate filed a motion

requesting the probate court’s approval of Pleasie’s written election to take against Lena’s will

pursuant to R.C. 2105.06. The writing was purportedly signed by Pleasie on March 23, 2010,

in the presence of his attorney.

       {¶ 4} On October 20, 2010, the probate court found that Pleasie’s election to take

against Lena’s will was valid and binding. The probate court awarded Pleasie’s estate $40,000

from Lena’s estate pursuant to R.C. 2106.13. The executor of Lena’s estate filed a notice of

appeal from that final order.

                                    First Assignment of Error

       {¶ 5} “The court erred in its decision of October 20, 2010 by finding the purported

election to take against the will to be valid.”

       {¶ 6} The executor of Lena’s estate argues that the trial court erred in finding that

Pleasie’s election to take against the will pursuant to R.C. 2105.06 was valid and binding,

because Pleasie failed to make the election in person before the probate judge as required by

R.C. 2106.06. We agree.

       {¶ 7} Once an administrator or executor of an estate is appointed, the probate court

must issue a citation to a surviving spouse to elect whether to take under the will pursuant to

R.C. Chapter 2106, or to take against the will by exercising the surviving spouse’s rights under

R.C. 2105.06 when a decedent dies intestate. R.C. 2106.01(A). This election “may be made

at any time after the death of the decedent, but the surviving spouse shall not make the election
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later than five months from the date of the initial appointment of an administrator or executor of

the estate.” R.C. 2106.01(E). “If no action is taken by the surviving spouse before the

expiration of the five-month period, it is conclusively presumed that the surviving spouse elects

to take under the will.” Id.

       {¶ 8} R.C. 2106.06 provides:

       {¶ 9} “The election of a surviving spouse to take under section 2105.06 of the Revised

Code and thereby refusing to take under the will shall be made in person before the probate

judge, or a deputy clerk who has been appointed to act as a referee, except as provided in

sections 2106.07 and 2106.08 of the Revised Code.

       {¶ 10} “When the election is made in person before the judge or referee, the judge or

referee shall explain the will, the rights under the will, and the rights, by law, in the event of a

refusal to take under the will.”

       {¶ 11} R.C. 2106.07 authorizes the probate court to appoint a commissioner to take the

surviving spouse’s election to take against the will. R.C. 2106.08 provides for election by a

spouse who is under a legal disability. The record does not reflect that either section applies in

the present case.

       {¶ 12} The requirement in R.C. 2106.06 to make the election in person before the

probate judge or an appointed referee or a commissioner appointed by the court is reflected in

Standard Probate Form 8.3, a copy of which was served on Pleasie along with the Citation to

Surviving Spouse to Exercise Elective Rights (Probate Form 8.0). Probate Form 8.3 is entitled

“Summary of General Rights of Surviving Spouse,” and states:

       {¶ 13} “If you elect to take under the Will, you may do so in writing if you wish, but

you may also do so by taking no action.
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        {¶ 14} “If you elect to take against the Will, you must do so in person before the

Probate Judge or a Magistrate. This election must be exercised within five months from the

date of the initial appointment of the administrator or executor of the estate or it is forfeited.”

        {¶ 15} It is undisputed that Pleasie did not make an election in person before a probate

judge, referee, or commissioner as required by R.C. 2106.06. Rather, Pleasie signed an

election form in his attorney’s office. The space on the form provided for the signature of the

probate judge is blank. Pleasie therefore waived his right to take against Lena’s will, and his

estate is not entitled to the share of a surviving spouse who properly did elect to take against the

will.

        {¶ 16} R.C. 2106.04 provides:

        {¶ 17} “If the surviving spouse dies before probate of the will, or, having survived the

probate, thereafter either fails to make the election provided by section 2106.01 of the Revised

Code or dies without having made an election within the times described in division (E) of that

section, the surviving spouse shall be conclusively presumed to have elected to take under the

will, and the surviving spouse and the heirs, devisees, and legatees of the surviving spouse, and

those claiming through or under them, shall be bound by the conclusive presumption * * * .”

        {¶ 18} Pursuant to R.C. 2106.04 and 2106.01(E), Pleasie is conclusively presumed to

have elected to take under the will. The probate court appears to have acknowledged this fact

when it stated: “At first glance, one would conclude that such election was invalid.” But

instead of finding that Pleasie’s estate is now entitled to only his share under Lena’s will, which

is nothing, the probate court relied on Martin v. Martin, Allen App. No. 1-03-55,

2004-Ohio-1397, to find that Pleasie’s written election in the presence of his attorney was a

valid and binding election to take against the will pursuant to R.C. 2105.06. We believe that
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the probate court erred in its application of Martin.

        {¶ 19} Martin involved a surviving spouse who signed a form in her attorney’s office

electing to take under the decedent’s will. Subsequently, the surviving spouse sought to set

aside that election and instead elect to take against the will. The court found that the surviving

spouse executed the election to take under the will with full knowledge of all the facts and

circumstances, and therefore could not revoke her election to take under the will.

        {¶ 20} The facts in Martin are inapposite to the case before us. Martin involved an

election to take under the will, which may occur outside the presence of the probate judge.

Martin did not address whether an election made in an attorney’s office could satisfy the

requirement in R.C. 2106.06 that the surviving spouse make an election to take against the will

in person before a probate judge or other person qualified under R.C. 2106.06. The plain

language of R.C. 2106.06 requires such an election to take place in person before a probate

judge, a deputy clerk appointed to act as a referee, or a person to whom a commission has been

issued by the probate court pursuant to R.C. 2106.07.

        {¶ 21} The first assignment of error is sustained.

                                   Second Assignment of Error

        {¶ 22} “The court erred in finding that there was sufficient proof of a decision and

intent to elect to take against the will.”

        {¶ 23} Based on our disposition of the first assignment of error, the second assignment

of error is moot. Therefore, we need not decide the error assigned. App.R. 12(A)(1)(c).

        {¶ 24} The judgment of the probate court is reversed and vacated.

                                                                             Judgment reversed.
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DONOVAN and HALL, JJ. concur.

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