In re Estate of Weitzel , 2021 Ohio 1859 ( 2021 )

[Cite as In re Estate of Weitzel, 2021-Ohio-1859.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN RE: :
CASE NO. CA2021-01-001
ESTATE OF JOSEPH WEITZEL, :
DECEASED OPINION
: 6/1/2021
:
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 20191405
Culpepper Law, LLC, Thomas L. Culpepper, 2955 Exchange Place Boulevard, Suite 104,
Miamisburg, Ohio 45342, for appellants
Graber Law Office, LLC, Matthew J. Graber, 300 W. Main Street, Mason, Ohio 45040, for
appellee, Estate of Joseph Weitzel, Deceased
Kauffman & Florence, William Robert Kaufman, 144 E. Mulberry Street, P.O. Box 280,
Lebanon, Ohio 45036, for appellee, Martine Weitzel, Individually and as Surviving Spouse
M. POWELL, P.J.
{¶ 1} Appellants, Delana Weitzel and Angela Wood, appeal a decision of the
Warren County Court of Common Pleas, Probate Division, denying their motion to bar
spousal elections.
{¶ 2} Joseph Weitzel died intestate on December 27, 2018. He was survived by
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his wife, appellee, Martine Weitzel ("Martine"), and his two adult daughters, Delana Weitzel
and Angela Wood ("the Children"). Martine is the Children's stepmother. On August 6,
2019, the probate court appointed Martine administrator of the estate of Joseph Weitzel.
Although statutorily required to do so, the probate court did not send Martine a citation
notifying her to elect whether to exercise surviving spousal rights.
{¶ 3} In October 2020, the Children filed a motion to bar spousal elections, arguing
that Martine had failed to make spousal elections within five months of the appointment of
the estate's administrator and was now barred from doing so under R.C. 2106.25. The
motion sought an order that Martine had waived her right to (1) elect to take under or against
the will, (2) receive an allowance for support, (3) remain in the mansion house rent free for
one year, (4) select automobiles, (5) select one watercraft, one watercraft trailer, and one
outboard motor, and (6) be reimbursed from the estate for funeral and burial expenses. See
R.C. 2106.01, 2106.13, 2106.15, and 2106.18 thru 2106.20. Martine filed a memorandum
opposing the Children's motion to bar spousal elections. She further moved the probate
court for an extension of time to make the spousal elections.
{¶ 4} By Decision and Entry filed of December 2, 2020, the probate court found that
although it was required under R.C. 2106.01(A) to issue a citation to Martine, as surviving
spouse, to elect whether to exercise her spousal rights, it had failed to do so. Based upon
its failure to issue the citation, the probate court found that the five-month limitation period
of R.C. 2106.25 was not absolute and denied the Children's motion to bar spousal elections.
The probate court granted Martine's motion to extend time to make spousal elections,
directed the clerk of court to serve the citation upon Martine's attorney, and extended the
time for Martine to make or waive spousal elections to 14 days after service of the citation.
{¶ 5} The Children appeal, raising one assignment of error:
{¶ 6} THE WARREN COUNT[Y] PROBATE COURT ERRED BY DENYING
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APPELLANTS' MOTION TO BAR SPOUSAL ELECTIONS AS OUT OF TIME UNDER R.C.
2106.25 AND GRANTING DEFENDANT-APPELLEE'S MOTION TO EXTEND TIME TO
MAKE HER ELECTIONS.
{¶ 7} The Children argue that the probate court erred in holding that the time within
which a surviving spouse must elect whether to exercise the R.C. Chapter 2106 spousal
rights is dependent upon service of the R.C. 2106.01(A) citation. The Children assert that
although statutorily required, the issuance or service of a citation is not necessary for a
surviving spouse to make spousal elections, and thus, a probate court's failure to issue or
serve the citation does not toll the five-month limitation period of R.C. 2106.25. Because
Martine was required but failed to make spousal elections by January 6, 2020, the Children
assert she has conclusively waived any surviving spousal rights. The Children cite Reid v.
Daniel, 2d Dist. Montgomery No. 26494, 2015-Ohio-2423, in support of their argument.
{¶ 8} Issuance of a citation to a surviving spouse by a probate court is mandatory
in Ohio. R.C. 2106.01(A) provides that "[a]fter the initial appointment of an administrator or
executor of the estate, the probate court shall issue a citation to the surviving spouse * * *
to elect whether to exercise the surviving spouse's rights under [R.C.] Chapter 2106,
including, after the probate of a will, the right to take under the will or under [R.C.] 2105.06."
(Emphasis added.) The citation "shall be served on the surviving spouse pursuant to Civ.R.
73," and furthermore "shall be accompanied by a general description of the effect of the
election to take under the will or under [R.C.] 2105.06 and the general rights of the surviving
spouse under [R.C.] Chapter 2106." (Emphasis added.) R.C. 2106.02(A) and (B). "Notice
that the citation has been issued by the court shall be given to the administrator or executor
of the estate[.]" R.C. 2106.02(A).
{¶ 9} In Reid, the trial court granted summary judgment against a surviving spouse
seeking to challenge the validity of an antenuptial agreement. The surviving spouse argued
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she was not time barred from contesting the antenuptial agreement because she was not
properly served with, and never received, the R.C. 2106.01(A) citation. The trial court
rejected the argument, finding that the surviving spouse was properly served. The trial court
further found that following the 2001 amendment of the statute, service of a citation was no
longer the "triggering or tolling event" for the time within which to exercise surviving spousal
rights. Rather, the appointment of the fiduciary was the triggering event. Reid, 2015-Ohio-
2423 at ¶ 20. The Second District Court of Appeals upheld the trial court's grant of summary
judgment against the surviving spouse. Although the court of appeals noted the trial court's
"triggering event" holding, it did not endorse it. Rather, the court of appeals simply affirmed
on the ground that the surviving spouse had been properly served with the citation. Id. at ¶
21, 26.
{¶ 10} Reid involved a surviving spouse's right to contest an antenuptial agreement
under R.C. 2106.22. That statute specifically provides that an action to set aside or
otherwise attack the validity of the agreement must be commenced within four months after
the appointment of the estate's administrator or executor. By contrast, the statutes creating
the spousal rights involved in this case do not specify a time within which those rights must
be exercised. See R.C. 2106.13, 2106.15, and 2106.18 thru 2106.20. Reid is therefore
distinguishable.
{¶ 11} Furthermore, Reid does not hold that the issuance or service of a R.C.
2106.01(A) citation is irrelevant to the time within which a surviving spouse must exercise
spousal rights under R.C. Chapter 2106. If such was the case, there was no need for the
legislature to keep the mandate that a probate court issue such a citation when the
legislature amended the statute in 2001. Moreover, while a surviving spouse is conclusively
presumed to have waived spousal rights not exercised within a specific time period under
R.C. Chapter 2106, it is axiomatic that "[t]he party alleged to have waived a right must have
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had both knowledge of the existing right and the intention of forgoing it." Estate of Kuzman,
11th Dist. Trumbull No. 2019-T-0003, 2019-Ohio-4135, ¶ 12 (defining waiver as "the
voluntary relinquishment or abandonment – express or implied – of a legal right or
advantage").
{¶ 12} There are two statutory provisions in R.C. Chapter 2106 governing the time
within which a surviving spouse must make spousal elections. The first statute is R.C.
2106.01(E), which provides
The election of a surviving spouse to take under a will or under
[R.C.] 2105.06 may be made at any time after the death of the
decedent, but the surviving spouse shall not make the election
later than five months from the date of the initial appointment of
an administrator or executor of the estate. On a motion filed
before the expiration of the five-month period, and for good
cause shown, the court may allow further time for the making of
the election. 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.
The election shall be entered on the journal of the court.
{¶ 13} As its language makes clear, R.C. 2106.01(E) solely governs a surviving
spouse's election to take under the will or against the will, requires the election to be made
within five months of the appointment of the estate's administrator or executor, and requires
that motions to extend the time for the making of the election be based upon good cause
and filed before the expiration of the five-month period. See also In re Estate of Riley, 165
Ohio App.3d 471, 2006-Ohio-956 (4th Dist.). Because Joseph Weitzel died intestate, an
election to take under or against the will under R.C. 2106.01(E) is not at issue here.
{¶ 14} A surviving spouse's election to exercise R.C. Chapter 2106 spousal rights
other than the right to take under or against the will is controlled by R.C. 2106.25, which
provides
Unless otherwise specified by a provision of the Revised Code
or this section, a surviving spouse shall exercise all rights under
[R.C.] Chapter 2106 within five months of the initial appointment
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of an executor or administrator of the estate. It is conclusively
presumed that a surviving spouse has waived any right not
exercised within that five-month period or within any longer
period of time allowed by the court pursuant to this section.
Upon the filing of a motion to extend the time for exercising a
right under [R.C.] Chapter 2106 and for good cause shown, the
court may allow further time for exercising the right that is the
subject of the motion.1
{¶ 15} Unlike a motion seeking an extension of time under R.C. 2106.01(E), an R.C.
2106.25 motion for additional time to exercise surviving spousal rights other than the right
to take under or against the will need only be supported by good cause and need not be
filed before the expiration of the statutory time limit.
{¶ 16} The probate court was statutorily required to issue a R.C. 2106.01(A) citation
to Martine as surviving spouse following the appointment of the estate's administrator.
Although not defined in R.C. Chapter 2106, the "good cause" contemplated goes to the
presentation of good and sufficient reasons for seeking an extension of the time within which
to exercise surviving spousal rights. The probate court's failure to issue the mandatory R.C.
2106(A) citation was good cause for the court to extend Martine's time to exercise or waive
the spousal rights at issue. The probate court, therefore, did not err in denying the
Children's motion to bar spousal elections and granting Martine's motion to extend time to
make spousal elections.
{¶ 17} The Children's assignment of error is overruled.
{¶ 18} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
1. Each spousal right created by R.C. Chapter 2106 has a time limit. As our discussion of Reid indicates,
some statutory provisions have a self-contained time limit applicable to that provision only. See R.C. 2106.22;
see also R.C. 2106.10 (surviving spouse's election to receive the mansion house must be made at or before
the time a final account is rendered); R.C. 2106.01(E). These statutory provisions are reflected in the "Unless
otherwise specified by a provision of the Revised Code" phrase of R.C. 2106.25's first sentence. For statutory
provisions without a self-contained time limit, R.C. 2106.25 governs.
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