Start with the deed: how the two of you held title
Pull a copy of the deed from the county recorder or the title papers from your closing. The wording decides everything else.
| How title was held | What you do | Probate needed? |
|---|---|---|
| Survivorship deed (joint with survivorship) | Record an affidavit with a certified death certificate, presented to the county auditor and filed with the recorder (R.C. 5302.17) | No |
| Transfer on death designation naming you | Record an affidavit of confirmation with a certified death certificate (R.C. 5302.222) | No |
| Your spouse’s name alone, no TOD | The house is part of the estate | Usually yes |
| Joint without survivorship (tenants in common) | Your spouse’s half goes through the estate | Usually yes, for that half |
The survivorship affidavit lists the surviving owner’s name and address, the date of death and the property description. Once it’s recorded, you own the house outright and can sell it like any other owner. The survivorship deed guide and the TOD designation affidavit guide explain each form.
A surviving spouse’s rights when the house is in the estate
When the house goes through probate, Ohio law gives you rights the other heirs don’t have. Three sections matter most:
- One year rent-free (R.C. 2106.15). You may stay in the house free of charge for one year after the death. The estate can still sell within that year to pay debts, and if it does, you’re paid the fair rental value for the rest of the year.
- Taking the house as your share (R.C. 2106.10). You can elect to take the house as part of your intestate share and support allowance, valued at its appraised value less your spouse’s share of any liens. The election must be made by the final account.
- Buying the house (R.C. 2106.16). If the house wasn’t specifically left to someone in the will, you can petition to buy it at the appraised value, even while you’re the executor.
For a smaller estate, R.C. 2113.03 allows release from administration when assets are $100,000 or less and everything goes to the surviving spouse, compared with $35,000 for other estates. That can shorten the time before a sale. If other heirs are involved, see selling an inherited house or the Ohio probate sale guide.
The two-year window for the $500,000 tax exclusion
Federal tax rules give a surviving spouse a deadline worth knowing. IRS Publication 523 says you may claim the full $500,000 exclusion on the gain from your home, instead of the $250,000 single limit, if:
- you sell within two years of your spouse’s death,
- you haven’t remarried by the date of the sale,
- neither of you used the exclusion on another home in the two years before, and
- you meet the two-year ownership and use tests, counting your spouse’s time.
Your basis may also have changed. IRS Publication 551 explains that for property owned jointly by spouses, half the value is included in the deceased spouse’s estate, which generally resets the basis on that half to its value at death. Together, those rules can mean little or no tax on a sale, but a tax professional should run your numbers.
Mortgages, reverse mortgages and Medicaid
A mortgage doesn’t disappear at death, and payments still come due. Our guide on what happens to a mortgage when the owner dies covers your options with the servicer.
If your spouse had a reverse mortgage and you weren’t a borrower, federal rules protect an eligible non-borrowing spouse who was married to the borrower at closing, was named in the loan documents, and keeps living in the house. See selling a house with a reverse mortgage. And if your spouse received Medicaid, Ohio’s estate recovery law, R.C. 5162.21, doesn’t recover from the estate while a surviving spouse is alive.
Order several certified copies of the death certificate early, since the recorder, the title company, the lender and insurers may each want one.
Deciding whether to stay
Nothing requires a quick decision, and for most people the first months are the wrong time to make one. Selling can make sense if the house is more than you can keep up, if you’d rather be near family, or if the costs no longer fit one income. Staying can make sense if it’s paid off and manageable.
If you’re leaning toward a smaller place, selling when downsizing covers that move. When you’re ready to see a number, with no obligation, tell us about the house.
