Pennsylvania’s Elective Share For Disinherited Spouses

If your spouse has disinherited you from their Will, you may be wondering whether you have any rights or recourse. In this article, we explore Pennsylvania’s elective share. This law essentially establishes that a disinherited spouse can force the Estate to provide him or her with one-third of the decedent’s assets even when they have been deliberately excluded or disinherited from their spouse’s Will. If you have been disinherited in a spouse’s Will and need more information, feel free to contact me at (610) 417-6345.

SPOUSAL ELECTION IN PENNSYLVANIA

Can a spouse be excluded from receiving any assets from a deceased spouse?

At death, it is common for a deceased person to convey his or her assets to his surviving family members through a formal legal document, also known as a Last Will and Testament. Typically, this document illustrates the decedent’s decision on who gets property and who does not and it is common practice that spouses ordinarily leave money and property to their surviving husband or wife.  There may be incidences where the surviving spouse is excluded from inheriting any of the assets of a deceased spouse.  However, according to Pennsylvania law, it is against public policy for a surviving spouse to be completely disinherited and he or she spouse is permitted to either accept the provisions of the will or “elect against” the decedent’s estate known as the right of election. In other words, a will is not the final word on what happens to the decedent’s estate.

The right of election ensures that the surviving spouse receives a fair portion of the estate. Accordingly, under Pennsylvania law, the surviving spouse has a right to an “elective share” of one-third (1/3) of decedent spouse’s property or assets.  Therefore, when the will is administered, the surviving spouse can choose to either accept the terms of the will or receive a minimum “elective share” as defined in the statutes.

Note: It is important to note that the right of a surviving spouse to take an elective share may be waived before, during, or after marriage or before or after spousal death. For example, if divorce proceedings were underway during the time of death, willful neglect of the deceased spouse,  or a prenuptial agreement agreed upon by both parties prior to marriage stating that the surviving spouse has waived his or her rights to an elective share. This, in turn, disqualifies a spouse from making an election.

What property is subject to election?

According to Pennsylvania Law, the following property is subject to election:

  • Property transferred from the decedent by will or intestacy (when there is no valid will executed by the deceased person)
  • Income from property of the deceased spouse, which the decedent was entitled to receive during marriage provided that the deceased had the right to the income at the time of death
  • Property that was transferred during decedent’s life that the deceased person still had the right to revoke the transfer and assume the property or invade the principal for his or her own benefit
  • Property conveyed by the deceased person during marriage to the decedent and another with a right of survivorship (e.g. joint property)
  • Annuity payments to the extent that it was purchased during the marriage by the deceased spouse and the decedent was receiving annuity payments at the time of death
  • Property or gifts given by the decedent during the marriage within one year of death to the extent that the amount exceeds $3,000 per recipient.

What property is not subject to election?

The following property is not subject to election:

  • Any conveyance or transfer of property made with the express consent of the surviving spouse
  • The proceeds of life insurance policies of the decedent
  • Interests from any employer established pension, deferred compensation, retirement plans, profit sharing, etc. for the deceased
  • Property passing by the decedent’s exercise or non-exercise of any power of appointment given by a person other than the deceased

What is the process for taking an elective share and is there a specified time frame that an election must be made?

There are specific procedural requirements that need to be followed in order to claim an elective share. A surviving spouse that would like to claim an elective share must do so in writing and file the notice with the clerk of the Orphan’s Court in the county where the decedent lived and the will was probated.  The statement must be filed by the surviving spouse within 6 months of either the date of death or within 6 months of the date of that the will was probated – whichever date comes later.

Unemployment Benefits for Teachers – Explanation of Section 402.1(1)

Pennsylvania unemployment law states that teachers and professors will not be paid unemployment benefits between two successive academic years provided that there’s “reasonable assurance” given that they will perform services in a second academic year. Although this law is very clear for teachers and professors who are full-time employees and simply on a summer break, this can created problems for substitute teachers who perform services for a school on an “as-needed ” basis or in situations where a teachers’ employment status has been downgraded from full-time to part-time.

Section 402.1(1) is the section of the Pennsylvania Unemployment Compensation Law that applies to teachers not being able to collect unemployment benefits between academic years as long as they are given “reasonable assurance” of returning for the next academic year. A contract of employment will certainly considered “reasonable assurance” of returning work the following academic year. A bona fide offer of employment will also be considered “reasonable assurance.” A bona fide offer is one in which the terms for the second academic year are not substantially less than that of the first academic year.

If you are a teacher whose employment status has changed and have been denied UC benefits under Section 402.1(1), please contact me. You may have received a Notice of Determination denying your unemployment benefits, but you have 15 days to file an appeal to request a UC referee hearing on the denial. If you can establish that the school did not give you “reasonable assurance” of continuing employment or that the school’s offer was not bona fide because, for example, your work schedule or compensation has been dramatically reduced, you could be entitled to unemployment benefits.

I am an unemployment compensation attorney located in Bethlehem, Pennsylvania, and would be happy to discuss your case with you. Please feel free to call me at (484) 362-9286.

Can unemployment benefits be denied for negligence involving property damage?

If you were terminated from your job because you accidentally damaged your employer’s property or equipment due to an accident, you may face difficulty obtaining Pennsylvania unemployment compensation (UC) benefits. Accidents are typically caused by what is considered negligent conduct. While a casual act of negligence would not lead to a denial of unemployment benefits, certain acts of negligence could lead to a denial of unemployment benefits.

In order for negligence causing property damage to lead a denial of UC benefits, the conduct must rise to the level of willful carelessness. The UC referee deciding the case will typically look for some conduct which would indicate some level of culpability or fault on the part of the employee.

In some cases, it’s easy to differentiate between negligent conduct which should lead to a denial of benefits and conduct which should not. However, it’s not always clear cut. Employers will typically try to argue the frequency of events to show that the conduct resulted in willful carelessness. For example, if an employee breaches safety protocol and is issued a warning and the employee violates the same type of protocol which results in the same type of property damage, that may be construed as willful carelessness since the employee was put on notice on what specific procedures are required to be followed.

But what if the accident is the first incident resulting in property damage? If that’s the case, the referee deciding the case will simply have to examine all of the facts and circumstances to reach a determination. The most common type of situation where I’ve seen property damage eligibility issues come up is in the context of fork lift operators. Conduct which would lead to a denial of benefits would be speeding on the forklift or a blatant disregard of safety protocols.

Keep in mind that in most contexts, negligence which results in damage to property or equipment will not result in a denial of unemployment benefit unless the employer is able to establish that the negligence was the result of willful carelessness. The employer bears the burden of proof on this issue which is important to note.

If your UC benefits have been denied by the UC Service Center or your employer is filing an appeal, feel free to contact me for a free consultation by calling (484) 362-9286. I am a UC attorney that represent claimants located in the Lehigh Valley of Pennsylvania and surrounding areas.

How Severance Pay Affects PA UC Benefits

On January 1, 2012, Act 6 of 2011 went into effect, which made some very important changes to Pennsylvania’s Unemployment Compensation Law. The most important aspect of this law was the way severance pay was treated with respect to calculating an employee’s unemployment compensation benefits. In some cases, severance pay may act as an offset against unemployment benefits which would reduce the amount of unemployment benefits a person can receive.

Prior to Act 6, employees could collect unemployment benefits regardless of the amount of severance received from their former employer. After the enactment Act 6, an offset is taken into consideration. The offset uses a formula to determine the amount of the offset based on “40% of the average annual wage.” Currently, “40% of the average annual wage” equals $17,853, which is subject to change. An employee can receive up to 40% of the average annual wage until their unemployment benefits are affected.

This means that if your severance award is less than $17,853, your unemployment benefits will not be affected. Any severance award you receive over $17,853 will reduce your unemployment benefits on a dollar-for-dollar basis. Severance agreements reached prior to January 1, 2012, will not be affected by this law. When applying for PA UC benefits, it’s important to notify the Department of Labor if you are receiving any severance so they can properly calculate the unemployment benefits you may be entitled to.

If you have any questions regarding your PA UC benefits, please feel free to contact me at (484) 362-9286.

My PA UC Claim Is Under Review – What Should I Do?

Question:

I went to check the status of my PA UC claim and I received a message that states “there is an issue on the claim that is currently being reviewed.” What does this mean for me?

Answer:

The PA UC Application Review Process

After you apply for unemployment compensation benefits in Pennsylvania, your case is assigned to a UC Representative who is responsible for investigating your claim and reaching a determination on whether or not you are eligible for UC benefits. This individual will review your initial application to obtain basic information regarding your claim. The representative will then contact the employer and request that the employer submit a questionnaire regarding the reason the employee’s employment ended. You may also be asked to submit a questionnaire as well.

If additional information is needed to clarify responses, the investigator has the ability to interview both the employee and the employer over the phone. However, the UC representative typically issues a determination based on the initial application  as well as subsequent questionnaires submitted by both parties.

The review process typically takes 4-6 weeks. Simply stay patient during this process. If you wish to check the status of your claim, you can call the UC Service Center for an update.

The PA UC Decision

The UC Representative will then reach a decision on whether an applicant is eligible for benefits. This decision is called the Notice of Determination. Both the employee and the employer will be mailed the Notice of Determination and either party has the right to file an appeal. An appeal must be filed within 15 days from the date the Notice of Determination is mailed.

The Notice of Determination will state if a particular section of law disqualifies a claimant from receiving unemployment benefits. The section of law that is most often used is Section 402(e) which relates to “willful misconduct.” This section will be used if the employer is alleging a rule violation or some sort of wrongdoing on the employee’s part. Other sections may also be used, such as Section 402(b) if you voluntarily quit your employment.

The PA UC Appeal Process

Upon filing an appeal to a Notice of Determination, the case will be scheduled for a UC Referee Hearing in approximately 4-6 weeks from the date of the appeal. Both the employer and the employee will be given the opportunity to provide testimony and offer evidence regarding the reason the employment ended. The referee hearing is the parties only opportunity to present evidence and testimony. After the referee hearing, an appeal can be filed with the Board of Review, who will review the referee’s decision to determine if it was correct.

Hiring a PC UC Attorney

If you are interested in retaining a Pennsylvania unemployment compensation attorney for your hearing, please contact me. My phone number is (484) 362-9286 and I am happy to provide a free consultation for your case. My office is located in Bethlehem, PA, and I primarily practice in the Lehigh Valley area.

Pennsylvania Landlord-Tenant Laws Regarding Abandoned Property

Throughout the years, Pennsylvania’s laws regarding abandoned property of a tenant have faced uncertainty. If property was left behind by a tenant, landlords were unsure of what their duties were with respect to that property, at what point the property would be considered abandoned by a tenant, and whether they were permitted to dispose of or sell property that was left behind.

That uncertainty has been resolved with the passage of Act 129 of 2012, the Abanonded Property Bill. Act 129 was signed by Governor Corbett on July 5, 2012, and went into effect September 2012. Act 129 deals with the disposition of personal property left behind after a tenant relinquishes possession of real property.

When Personal Property Becomes Abandoned

There are two ways where a tenant will have relinquished possession of real property: (1) an order of possession is entered by a magistrate court following a hearing, the entry of a judgment for possession, and the ten day appeal period has expired; or (2) the tenant physically vacates the property, removes substantially all personal property, and provides a forwarding address or written notice that he has vacated.

Landlord’s Duties Regarding Abandoned Property

The eviction process starts by filing a complaint for the recovery of possession of real property with a magistrate court. Once the complaint is filed and served on the tenant, a hearing will be scheduled. The District Justice will then award possession of the property to the landlord. The tenant has ten days to file an appeal. If an appeal is not taken, the landlord can request a Writ of Possession after the ten day appeal period has expired.

The Writ of Possession should soon be amended to advise a tenant of his right to make a request to the Landlord that he is coming back for his possessions within ten days.  If the tenant informs the landlord within 10 days of an Order of Possession being entered that he intends to come back for any possessions left behind, the landlord must hold the property for a period of 30 days. The property can be held at the property or in storage.

If the Writ of Possession does not include that notice to the tenant, the landlord must provide the tenant with a written notice to the tenant about the remaining property and give the tenant ten days from the date of the postmark of the notice to communicate his intent. If there is no communication within ten days, the landlord can dispose of the property.

If the tenant retrieves the items within ten days, the landlord cannot charge the tenant for removal and storage. If the tenant retrieves the items after ten days, but within 30 days, the landlord can charge the tenant for the removal and storage of the items. The law does not specify whether a landlord can refuse to relinquish possession unless the costs are simultaneously paid by the tenant.

In the second scenario outlined above, if a tenant vacates the property and provides a forwarding address and a landlord sells the goods for more than the tenant owes the landlord, the excess proceeds of the sale are to be mailed to the tenant’s forwarding address via certified mail. If no forwarding address is provided, the landlord must hold the proceeds for thirty days, after which the landlord may keep the excess.

Leases should also be amended to inform tenants of their rights under Act 129. If you have questions regarding Act 129, feel free to contact me at (484) 362-9286.