[Cite as In re Estate of Cvanciger, 2015-Ohio-4318.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

ESTATE OF DOROTHY M. CVANCIGER : O P I N I O N 

aka DOROTHY M. STARLIN, DECEASED 

 : 

 CASE NO. 2014-L-095

 : 

Appeal from the Lake County Court of Common Pleas, Probate Division, Case No. 12 

ES 0421. 

Judgment: Affirmed. 

L. Bryan Carr, Carr, Feneli & Carbone Co., L.P.A., 1392 S.O.M. Center Road, Mayfield 

Heights, OH 44124 (For Appellant – Sharon Pinkerman). 

Paul R. Malchesky, Cannon, Aveni & Malchesky Co., L.P.A., 41 East Erie Street, 

Painesville, OH 44077 (For Appellee – Cecil Starlin). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Sharon Pinkerman, executrix of the estate of her deceased 

mother, Dorothy M. Cvanciger aka Dorothy M. Starlin, appeals the judgment of the Lake 

County Court of Common Pleas, Probate Division, granting the motion of appellee, 

Cecil Starlin, Mrs. Starlin’s surviving spouse, for the statutory allowance for support. 

We are asked to determine whether the allowance for support available to a surviving 

spouse is an absolute right or whether it is waived if not timely exercised. For the 

reasons that follow, we affirm. 
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{¶2} Mr. Starlin is 84 years old. He and Mrs. Starlin married in 1998. Mrs. 

Starlin passed away on April 8, 2012, leaving Mr. Starlin and four adult children from a 

prior marriage, Ms. Pinkerman, Lisa Layton, Jeffrey Cvanciger, and Mark Cvanciger. 

{¶3} Mrs. Starlin executed a will on December 16, 1999. The will provided that 

Mr. Starlin could remain in the “mansion house” in Wickliffe, Ohio (residence) for one 

year rent-free, but she did not leave him any property or money. 

{¶4} The will gave Mrs. Stalin’s personal property to Ms. Pinkerman and Ms. 

Layton, and left the residue of the estate to Mrs. Starlin’s four children equally. 

{¶5} Further, Mrs. Starlin appointed her daughter, Ms. Pinkerman, to be 

executrix of the estate. 

{¶6} Ms. Pinkerman filed this proceeding to probate her mother’s will on July 

13, 2012. According to the Inventory, the residence was the only asset of the estate. 

{¶7} On July 18, 2012, the court appointed Ms. Pinkerman executrix. 

{¶8} Also on July 18, 2012, the court issued a citation to Mr. Starlin, as required 

by R.C. 2106.01, “citing” him to exercise his statutory rights as a surviving spouse. 

Along with the citation, the court sent to Mr. Starlin a “Summary of General Rights of 

Surviving Spouse” form, which summarized the rights of a surviving spouse under R.C. 

Chapter 2106. The citation advised him that most of the rights must be exercised within 

five months from the date of the appointment of the executor. 

{¶9} One month later, on August 27, 2012, Mr. Starlin filed his election to take 

against the will. 

{¶10} After not receiving the statutory allowance for over one year after Ms. 

Pinkerman was appointed executrix, on December 31, 2013, Mr. Starlin filed a “Motion 
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for Allowance of Support” pursuant to R.C. 2106.13. In his motion, he asked that, upon 

sale of the residence, the court order the first $40,000 be paid to him as his allowance 

for support pursuant to R.C. 2106.13. Ms. Pinkerman sold the residence with the 

court’s consent in December 2013 for $42,800. 

{¶11} On January 13, 2014, the court granted Mr. Starlin’s motion for allowance 

of support. However, the next day, January 14, 2014, Ms. Pinkerman filed an objection 

to Mr. Starlin’s motion for allowance of support, arguing the motion was untimely. The 

court vacated its approval of the allowance for support, and set the matter for hearing 

on Mr. Starlin’s motion for allowance and Ms. Pinkerman’s objection thereto. 

{¶12} At the hearing on February 27, 2014, Ms. Pinkerman, citing R.C. 2106.25, 

argued that Mr. Starlin’s motion for allowance of support was not timely filed. Mr. 

Starlin’s attorney acknowledged that the motion for allowance was not filed within the 

five-month limitation period set forth in that statute, but said the court “can grant 

extensions” and asked the court to “treat [Mr. Starlin’s motion for allowance] as timely 

filed.” 

{¶13} The magistrate found that Mr. Starlin did not waive the allowance for 

support and that he was entitled to the statutory allowance. 

{¶14} Ms. Pinkerman filed objections to the magistrate’s decision. On 

September 2, 2014, the trial court entered judgment overruling her objections and 

finding that Mr. Starlin was entitled to the allowance for support. Ms. Pinkerman 

appeals the trial court’s judgment, asserting the following for her sole assignment of 

error: 
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{¶15} “The trial court erred in adopting the magistrate’s decision, granting the 

motion for allowance of support.” 

{¶16} Ms. Pinkerman argues that Mr. Starlin’s motion for allowance of support 

was not timely filed and that the trial court thus erred in granting the motion. Mr. Starlin 

argues, however, that this argument misses the point because R.C. 2106.13 creates an 

absolute right in favor of a surviving spouse to receive $40,000 upon the death of the 

surviving spouse’s husband or wife, implying the statutory allowance need not be timely 

requested in order for the surviving spouse to be entitled to it. 

{¶17} We are asked to determine whether the statutory allowance for support 

provided for at R.C. 2601.13 is an absolute right and thus automatic or whether it must 

be exercised within the five-month limitation period found in R.C. 2601.25, like the other 

rights provided to a surviving spouse under R.C. Chapter 2106. 

{¶18} A trial court’s decision to adopt, reject, or modify a magistrate’s decision is 

reviewed for an abuse of discretion. In re Gochneaur, 11th Dist. Ashtabula No. 2007-A0089, 2008-Ohio-3987, ¶16. This court has stated that the term “abuse of discretion” is 

one of art, connoting judgment exercised by a court, which does not comport with 

reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio2156, ¶24. 

{¶19} We are asked to apply and interpret R.C. 2106.13 concerning the statutory 

allowance for support. “The trial court’s construction of statutes * * * involves questions 

of law, which we review de novo.” Beaumont v. Kvaerner N. Am. Constr., 11th Dist. 

Trumbull No. 2013-T-0047, 2013-Ohio-5847, ¶8. 
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{¶20} An appellate court cannot interpret a statute, unless the statute is 

ambiguous. Wetland Pres. Ltd v. Corlett, 11th Dist. Ashtabula No. 2011-A-0034, 2012-

Ohio-3884, ¶34, citing Chambers v. Owens-Ames-Kimball Co., 146 Ohio St. 559, 566 

(1946). An ambiguity exists if the language is susceptible to more than one reasonable 

interpretation. State v. Swidas, 11th Dist. Lake No. 2009-L-104, 2010-Ohio-6436, ¶17. 

{¶21} “‘[I]f the meaning of a statute is clear on its face, then it must be applied as 

it is written.’” Hartmann v. Duffey, 95 Ohio St.3d 456, 2002-Ohio-2486, ¶8, quoting Lake 

Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn., 69 Ohio St.3d 521, 524 (1994). “Thus, if the 

statute is unambiguous and definite, there is no need for further interpretation.” 

Hartmann, supra. “‘To construe or interpret what is already plain is not interpretation but 

legislation, which is not the function of the courts.’” Lake Hosp. Sys., Inc., supra, quoting 

Iddings v. Jefferson Cty. School Dist. Bd. of Edn., 155 Ohio St. 287, 290 (1951). “Where 

the language of a statute is plain and unambiguous * * *, there is no occasion for 

resorting to rules of statutory interpretation.” Sears v. Weimer, 143 Ohio St. 312 (1944), 

paragraph five of the syllabus. 

{¶22} R.C. 1.49 provides that if a statute is ambiguous, the court, in determining 

the intention of the legislature, may consider, inter alia, the object sought to be 

achieved; the circumstances under which the statute was enacted; the legislative 

history; the common law concerning the same or similar subjects; and the 

consequences of a particular construction. 

{¶23} R.C. 2106.13, regarding the allowance for support, provides in part: 

{¶24} (A) If a person dies leaving a surviving spouse and no minor 

children, * * * the surviving spouse * * * shall be entitled to receive * 
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* * in money or property the sum of forty thousand dollars as an 

allowance for support. * * * The money or property set off as an 

allowance for support shall be considered estate assets. 

{¶25} (B) The probate court shall order the distribution of the allowance 

for support described in division (A) of this section as follows: 

{¶26} (1) If the person died leaving a surviving spouse and no minor 

children, one hundred per cent to the surviving spouse * * *. 

(Emphasis added.) 

{¶27} “The use of the word ‘shall’ in a statute indicates the provision’s 

mandatory nature, leaving the court with no discretion.” In re Dohm, 11th Dist. Lake No. 

2010-L-091, 2011-Ohio-1166, ¶11, citing State ex rel. Law Office Pub. Defender v. 

Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, ¶31. 

{¶28} Thus, the legislature’s use of the phrases “shall be entitled” to the 

allowance and “the probate court shall order the distribution” in R.C. 2106.13(A) and (B) 

indicate the mandatory nature of the statute, leaving the court with no discretion in 

distributing the allowance to the surviving spouse. According to the clear and 

unambiguous provisions of R.C. 2106.13(A) and (B), Mr. Starlin, as the surviving 

spouse, was absolutely entitled to the statutory allowance and the trial court had a 

mandatory duty to order it be distributed to him. Thus, we need not determine the 

legislature’s intent in enacting R.C. 2106.13. 

{¶29} In any event, even if it was necessary for us to determine legislative intent, 

the application of the rules of statutory construction that follows reveals the legislature’s 

intent in enacting the statutory allowance was to give the surviving spouse an absolute, 
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automatic right to a monetary allowance for his or her temporary support in the 

aftermath of the deceased spouse’s death. 

{¶30} First, in comparing the allowance for support in R.C. 2106.13 with the 

other rights available to a surviving spouse in R.C. Chapter 2106, the statutory 

allowance is the only right that is unqualified and not contingent upon compliance with 

an expressly-stated procedure or limitations period. As such, entitlement to the 

allowance for support is not conditioned on compliance with R.C. 2106.25, which sets 

forth the general five-month limitation period for the exercise of the rights of a surviving 

spouse. That section provides: 

{¶31} [A] surviving spouse shall exercise all rights under Chapter 2106. of 

the Revised Code within five months of the initial appointment of an 

executor * * * 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 Chapter 2106. of the Revised 

Code and for good cause shown, the court may allow further time 

for exercising the right that is the subject of the motion. 

{¶32} Thus, while the statutory rights available to a surviving spouse must 

generally be exercised within five months of the appointment of the fiduciary, the lack of 

any contingencies to the allowance for support indicates the legislature did not intend to 

require a surviving spouse to assert the allowance for support within the statutory 

limitation period in order to be entitled to it. 
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{¶33} Second, while the five-month limitation period in general does not apply to 

the statutory allowance, R.C. 2106.13 sets forth one situation in which that limitation 

period does apply. R.C. 2106.13(D) provides that If the probate court is required to 

“allocate” (i.e., divide the allowance for support between the surviving spouse and minor 

children), then the executor must file with the probate court an application to allocate the 

allowance for support within five months of the appointment of an executor. The 

legislature did not, however, attach the five-month limitation period to the right of the 

surviving spouse to the statutory allowance when there is no need to allocate or divide 

the allowance. 

{¶34} This court has held that the canon of construction “expressio unius est 

exclusio alterius” means that the inclusion of one thing in a law implies the exclusion of 

another. Vasquez v. Windham, 11th Dist. Portage No. 2005-P-0068, 2006-Ohio-6342, 

¶28. Because R.C. 2106.13 only includes the five-month limitation period in R.C. 

2106.13(D) when an allocation among beneficiaries is necessary, this indicates the 

legislature intended to exclude the limitation period when allocation among beneficiaries 

is not necessary such as here, where the surviving spouse is the only available recipient 

of the allowance. 

{¶35} Third, the common law in Ohio supports the conclusion that the right to the 

statutory allowance is absolute and automatic. In Leyshon v. Miller, 4th Dist. 

Washington No. 93CA37, 1994 Ohio App. LEXIS 4885 (Oct. 20, 1994), the Fourth 

District held: 

{¶36} [R.C. 2106.13] creates an absolute right in a surviving spouse to 

receive $25,000 in money or property upon the death of their 
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husband or wife where there are no minor children. The use of the 

word “shall” in the statute indicates that the distribution of such 

funds is mandatory. Further, this allowance is given regardless of 

whether the surviving spouse takes under the will. See R.C. 

2106.05 (“An election to take under the will does not bar the right of 

the surviving spouse * * * to receive the allowance for support 

provided by section 2106.13 of the Revised Code.”) Leyshon, 

supra, at *9-*10. 

{¶37} Although the right to the statutory allowance is absolute, it can be waived. 

R.C. 2106.13(E). In In re Estate of Earley, 4th Dist. Washington No. 00CA34, 2001 

Ohio App. LEXIS 4286 (Aug. 24, 2001), the surviving spouse/executrix took action that 

was inconsistent with her right to receive the allowance for support by transferring the 

sole asset from which the allowance could have been paid to an estate beneficiary. 

Thus, there was nothing left in the estate from which the allowance for support could 

have been paid to her. Id. at *3-*4. In these circumstances, the Fourth District held that 

the surviving spouse by her actions waived the allowance for support. Id. at *13. 

Accord In re Burchett, 16 Ohio App.2d 45 (3d Dist.1968), paragraph one of the syllabus 

(the surviving spouse waived her right to the allowance for support by directing the 

administratrix to pay the bills of the estate even if such payment resulted in no money 

being left for distribution to her). 

{¶38} Ohio courts have alluded to the absolute and automatic nature of the 

statutory allowance in several different contexts. First, in Norwood-Hyde Park Bank & 

Trust Co. v. Howard, 32 Ohio N.P. (n.s.) 191, 1934 Ohio Misc. LEXIS 1450 (Hamilton 
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C.P.1934), the court explained the statutory allowance in the context of whether it was 

subject to execution in satisfaction of a judgment against the surviving spouse. The 

court stated: 

{¶39} The law of Ohio gives this allowance to the widow as a matter of 

right, not of discretion, for her support * * * and for no other 

purpose. The law provides that appraisers shall set aside the 

allowance; if they fail, the court may order it. Should the widow die 

before the allowance is set off to her, her administrator may apply 

for and have it set off. Id. at 194. (Emphasis added.) 

{¶40} The court in Howard, supra, stated that the statutory allowance is based 

on the public policy aimed at protecting the surviving spouse and children from the 

distress and economic need often caused by the recent loss of their supporter and 

protector. Id. at 193. 

{¶41} Ohio courts have also indicated that without a will or an antenuptial 

agreement barring the statutory allowance, it is automatic. In Jacobsen v. Cleveland 

Trust Co., 6 Ohio Misc. 173 (C.P. Lake 1965), the plaintiff-widow filed a petition seeking 

the cancellation of an antenuptial agreement between her and her deceased husband. 

In the antenuptial agreement, the widow expressly disclaimed all right to share in her 

husband’s estate upon his death, including her statutory allowance. The court stated: 

“Unless barred by an antenuptial agreement or ‘the will expressly directs otherwise’ as 

required by R.C. [R.C. 2106.05], a widow is entitled to her * * * allowance * * *.” 

Jacobsen, supra, at paragraph one of the syllabus. Accord In re Estate of Reddick, 102 

Ohio App.3d 488, 490-491 (3d Dist.1995) (where wife takes under husband’s will and 
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will expressly states wife is not entitled to statutory allowance for support, wife is barred 

from receiving the allowance). 

{¶42} Further, in Gearheart v. Cooper, 1st Dist. Hamilton Nos. C-050532, C060170, 2007-Ohio-25, the First District indicated that a valid antenuptial agreement 

divesting the wife of the right to take anything in the husband’s estate would have 

prevented the wife from obtaining the statutory allowance. Id. at 21. 

{¶43} Thus, without a valid antenuptial agreement barring the allowance or a will 

expressly divesting the surviving spouse of the statutory allowance, it is absolute and 

automatic. 

{¶44} Distilled to their essence, the foregoing authority establishes that in Ohio, 

the statutory allowance for support is treated differently than other rights available to a 

surviving spouse. The allowance is considered an absolute right, and the probate court 

is mandated by statute to order the distribution of the allowance to the surviving spouse 

unless it is waived. The probate court cannot exercise its discretion or judgment in any 

way that would result in the termination of such right. Further, the right to the statutory 

allowance is based on public policy aimed at protecting the surviving spouse and 

children. Further, the surviving spouse is entitled to the allowance unless it is barred by 

a valid antenuptial agreement or the will expressly bars the surviving spouse from 

receiving it. Unless it is so barred, the statutory allowance is automatic and the 

surviving spouse is not required to request it within the five-month limitation period 

provided for in R.C. 2106.25. 

{¶45} Here, the will did not expressly divest Mr. Starlin of the right to receive the 

statutory allowance. Nor was there any antenuptial agreement barring his right to the 
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allowance. Moreover, the funds in the estate have not been distributed and are 

available to pay the allowance. Finally, Mr. Starlin never took any action inconsistent 

with his right to the statutory allowance, and, thus, as the trial court found, he did not 

waive the allowance for support. Earley, supra. We therefore hold the trial court did not 

err in finding that Mr. Starlin was entitled to the allowance for support, despite the fact 

that it was not filed within five months of Ms. Pinkerman’s appointment. 

{¶46} For the reasons stated in the opinion of this court, the assignment of error 

lacks merit and is overruled. It is the judgment and order of this court that the judgment 

of the Lake County Court of Common Pleas, Probate Division, is affirmed.

COLLEEN MARY O’TOOLE, J., concurs, 

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion. 

_____________________ 

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion. 

{¶47} I dissent. 

{¶48} The majority goes awry in applying a fairly basic statutory scheme. R. C. 

Chapter 2106 confers various rights. Each and every one of those rights, however, has 

a time limit. Some provisions have a self-contained time limit applicable to that 

provision only, i.e., R.C. 2106.10, while other provisions do not. For those provisions 

without a self- contained time limit, the catch-all provision governs. 

{¶49} R.C. 2106.25 states: 
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{¶50} “Unless otherwise specified by a provision of the Revised Code or this 

section, a surviving spouse shall exercise all rights under Chapter 2106 of the Revised 

Code within five months of the initial appointment 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 * * *.” (Emphasis added.) 

{¶51} Accordingly, to properly decide this case one need consider three simple 

questions: (1) is the right at issue conferred by Chapter 2106; (2) is the time limit for 

exercising otherwise specified; and (3) was the right exercised within five months of the 

initial appointment? 

{¶52} Answering in order: (1) the right at issue is a Chapter 2106 right; (2) a time 

limit for exercising is not otherwise specified; and (3) it was not exercised within five 

months. Accordingly, the right was conclusively waived. 

{¶53} In construing statutes that relate to the same general subject matter, a 

court is required to read the various provisions in pari material such that all statues are 

accorded proper force and effect. United Telephone Co. of Ohio v. Limbach, 71 Ohio 

St.3d 369, 1994-Ohio-209, 643 N.E.2d 1129 (1994); Jones v. Auburn Twp. Bd. of 

Zoning Appeals, 11th Dist. Geauga No. 2011-G-3033, 2012-Ohio-6124, ¶25. 

Moreover, when the meaning of a statute is clear on its face, it must be applied as 

written. Hartmann v. Duffey, 95 Ohio St.3d 456, 2002-Ohio-2486, 768 N.E.2d 1170, ¶8. 

{¶54} Both R.C. 2106.13 and 2106.25 are clear and unambiguous. Giving both 

their due, the former grants the right and the latter sets the time limit for exercising as 

well as the ramifications for not doing so. 
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{¶55} Contrary to the majority, the right is not “automatic and absolute,” it is “use 

it or lose it”. While a surviving spouse shall be entitled to receive an allowance for 

support when timely asserted, the failure to do so results in conclusive waiver.