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.


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.

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