## Facts

- Carroll R. Cross died testate, leaving his entire estate to his son, Ray G. Cross, and making no provision for his wife, Beulah Cross.
- Beulah was nearly eighty, suffered from Alzheimer’s disease, and was incompetent to make a statutory election to take against the will.
- Beulah resided in a nursing home, and her care was paid by Medicaid.
- Under Ohio’s elective-share statute, Beulah’s election would entitle her to the first $25,000 of the estate plus one-half of the remaining net estate (approximately $9,000).
- The probate court appointed a commissioner under R.C. 2106.08 to evaluate whether an election should be made on Beulah’s behalf; the commissioner recommended making the election.
- Medicaid eligibility required Beulah to make available income or resources to which she was potentially entitled, including an elective share.

## Issues

1. Whether the probate court abused its discretion under R.C. 2106.08 by electing, on behalf of an incompetent surviving spouse receiving Medicaid benefits, to take the statutory elective share against the decedent’s will.
2. Whether Medicaid’s payment of nursing-home expenses renders an elective-share election unnecessary for “adequate support” under R.C. 2106.08.

## Decision

- The Supreme Court of Ohio reversed the court of appeals and reinstated the probate court’s order electing the spousal share.
- The probate court did not abuse its discretion in finding the election “necessary to provide adequate support” under R.C. 2106.08.
- Medicaid coverage did not make the election unnecessary; the elective share was a potential resource relevant to continued eligibility and support.

## Legal Principles

- Under R.C. 2106.08, a probate court may elect a surviving spouse’s statutory share when the spouse is incompetent, based on a fact-specific determination of whether the election is necessary to provide adequate support during the spouse’s life expectancy.
- “Adequate support” may include securing or preserving public-benefit coverage when the spouse must make available potential income or resources to remain eligible.
- The elective-share scheme is designed to protect surviving spouses and may operate as a legislative limitation on testamentary dispositions that disinherit a spouse.
- Appellate review of a probate court’s decision under R.C. 2106.08 applies an abuse-of-discretion standard; a supported finding of necessity will be upheld.

## Conclusion

The court held that a probate court may elect an incapacitated surviving spouse’s elective share even when Medicaid currently pays for care, because the elective share can be a necessary resource to ensure adequate support and maintain benefit eligibility, and the probate court’s supported determination will not be disturbed absent an abuse of discretion.


In re Estate of Cross, 75 Ohio St. 3d 530, 664 N.E.2d 905 (Ohio 1996)