In re Estate of LaSpina

This appeal presents the issue of whether the right of a surviving spouse to elect against the will survives her death. For the reasons that follow, we hold that the right of election is personal to the surviving spouse, and may not be exercised in favor of her estate following her death.

R. C. 2107.39 authorizes an election by the surviving spouse, and provides, in pertinent part, that:

“After the probate of a will and the filing of the inventory, appraisement, and a schedule of debts where ordered, the probate court shall issue a citation to the surviving spouse, if any be living at the time…