Pennsylvania’s Spousal Elective Share

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLPDisinheriting a spouse in Pennsylvania is not as simple as leaving a spouse nothing under the Will.  In Pennsylvania, the surviving spouse has the right to receive an “elective share” of certain property of the deceased spouse.  This election must be made by the surviving spouse or his/her guardian within six months of the decedent’s date of death or probate of his/her will by written filing with the clerk of the Orphans’ Court Division in the county where the decedent was domiciled. Failure to comply with the filing deadline will result in a waiver of the right of election. 

The property subject to the right of election includes the following:

  1. Property passing from the decedent by will or intestacy.
  2. Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage to the extent that the decedent at the time of his or her death had the use of the property or an interest in or power to withdraw the income thereof.
  3. Property conveyed by the decedent during lifetime to the extent that the decedent retained the power to revoke the conveyance or use the property for his or her benefit.
  4. Property conveyed by the decedent during the marriage to himself or herself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of death unilaterally to convey absolutely or in fee.
  5. Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his or her death.
  6. Property conveyed by the decedent during the marriage and within one year of death to the extent that the aggregate amount so conveyed to each don’t exceeds $3,000, valued at the time of conveyance.

To the extent it does not pass as part of the decedent’s probate estate, property not subject to the elective share includes:

  1. Any conveyance made with the express consent or joinder of the surviving spouse.
  2. The proceeds of insurance on the decedent’s life, including accidental death benefits.
  3. Broad-based nondiscriminatory employee benefits, including pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plans. Note:  These plans may also be governed by federal law requiring a spouse to be named as a beneficiary.
  4. Property passing by the decedent’s exercise or nonexercise of any power of appointment given to the decedent by someone else.

It is important to note that exercising your right to an elective share of your deceased spouse’s estate can result in a disclaimer of other testamentary gifts made to you by the decedent.  An experienced probate attorney can advise on whether electing against your deceased spouse’s will makes sense for you. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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