Legal Memorandum: Tortuous Interference with an Expected Inheritance

Issue: Does Ohio law permit non-heirs to file an action for tortuous interference with an expected inheritance after the estate has closed?

  Ohio recognizes the tort of interference with an expected inheritance.  Firestone v. Galbreath, 67 Ohio St. 3d 87, 616 N.E.2d 202 (1993).  The elements of interference with an expected inheritance are:  (1) existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference with that expectancy of inheritance by the defendant; (3) conduct by the defendant that is tortious in nature, such as fraud, duress or undue influence; (4) a reasonable certainty that the expectancy of inheritance would have been realized but for the interference by the defendant; and (5) damage resulting from the interference.  Id. at 88, 616 N.E.2d at 203.  In Firestone, the Ohio Supreme Court held that anyone who can prove the elements of the tort has the right to maintain the cause of action.  Id.  Under Firestone, therefore, Vicki and Eugene Jr. have standing to bring this action.

Although there is little case law in Ohio, other jurisdictions limit tortious interference claims to cases in which adequate relief cannot be obtained in a will contest.  The Florida Supreme Court in DeWitt v. Duce, 408 So.2d 216 (Fla. 1981), held that because the appellants had an adequate remedy in probate court, they were barred from bringing a later action for tortious interference with an expectancy.  In DeWitt, the plaintiff filed a petition for revocation of probate of the decedent’s will, but voluntarily dismissed the petition before trial, electing instead to take under the probated will.  Id. at 217.  More than two years later, the plaintiff […]