664 N.E.2d 905 (Ohio 1996)
Decedent Carroll Cross passed away, leaving behind his surviving spouse, Mrs. Cross.1 At the time of his death, Mrs. Cross depended solely upon Medicaid benefits for her support and care, including the costs associated with her nursing home residence.2 Because she was under a legal disability, the probate court appointed a commissioner to ascertain her adequate support needs and to compare the value of her rights under the will with the value of her rights under the statute of descent and distribution.3 Acting upon the commissioner's findings, Judge Corrigan elected for Mrs. Cross to take against the will and under R.C. 2105.06.4
The court of appeals reversed the election.5 It concluded that Mrs. Cross would have elected to take under the will had she been competent, since her nursing home expenses were covered by Medicaid.6 In reaching this conclusion, the court of appeals applied Ohio Adm.Code 5101:1-39-361, which provides a method for determining Medicaid eligibility where one spouse is institutionalized and the other spouse is a community spouse, even though that provision was inapplicable after the spouse's death.7
Whether Judge Corrigan abused his discretion in electing for decedent Carroll Cross’s surviving spouse to take against the will and under R.C. 2105.06?8
Under R.C. 2106.08, the probate court may elect for the surviving spouse to take against the will and under R.C. 2105.06 only if it finds, after taking into consideration the other available resources and the age, probable life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the surviving spouse, that the election is necessary to provide adequate support for the surviving spouse during his life expectancy.9
No. The established facts show that Mrs. Cross depended solely upon Medicaid benefits for her support and care and that Judge Corrigan appointed a commissioner to investigate before electing to take against the will.10 Mrs. Cross held a legal interest in her intestate share that qualified as an available resource under Medicaid eligibility rules, and electing to take under the will would have caused nonutilization of that resource.11 Nonutilization would have rendered her ineligible for benefits, so the election against the will was required to secure adequate support under the statutory factors.12
Judge Corrigan did not abuse his discretion when he elected for Mrs. Cross to take against the will, and the judgment of the court of appeals is reversed.13