The Spousal Elective Share

For a variety of reasons, some unintentional and others very intentional, a surviving spouse can find himself or herself excluded from his or her spouse’s will.

In such circumstances, Pennsylvania law provides for a “spousal elective share,” which allows the surviving spouse to “take against the will” of their deceased spouse. 

Under this elective share law, the surviving spouse is entitled to one-third of various categories of property upon the death of the decedent spouse regardless of the terms of the deceased spouse’s will.  Following are examples of some of the more significant categories of property that a surviving spouse can claim this one-third interest in:

  • Property passing from the decedent by will or intestacy (what we would normally call the “probate estate”);
  • For the duration of the surviving spouse’s life, income or use of property given away by the deceased spouse during the marriage provided that that right was still held by the deceased spouse at the time of his or her death;
  • Revocable trusts established by the deceased spouse;
  • Certain property conveyed during the marriage to the decedent and one or more individuals with right of survivorship;
  • Survivorship rights conveyed to a beneficiary of an annuity if the annuity was purchased by the decedent during the marriage and the decedent was receiving annuity payments from the annuity at the time of his death; and
  • Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount of the conveyance exceeds $3,000.

The spouse’s elective share expressly does not include certain other asset categories enumerated in the law. The most significant of these are:

  • Proceeds of life insurance policies;
  • Employee retirement plans, including IRA’s and 401k plans; and
  • Asset transfers made with the express consent of the surviving spouse. 

A surviving spouse who wants to take his or her elective share must file a written statement in the office of the clerk of the Orphans’ Court in the county where the will was probated.  The election must be filed with the clerk of the Orphans’ Court by the later of (a) 6 months after the decedent’s death or (b) 6 months after the will was probated.

The actual process of taking against a will and calculating the elective share can become more complicated than this brief article may suggest.  If you believe that you are a candidate for the sort of protection the act provides, which is to say that you are a  widow or widower who believes that you have been dealt with unfairly under your spouse’s will, it is important that you take action quickly as there may be significant review required and there is, as mentioned above, only a six month window after the probate of the will to make your election.

— Rod Fluck

Posted in Estates / Wills, Newsletters