Surviving Spouse Right To an Elective Share In Pennsylvania Probate

When a married person dies domiciled in Pennsylvania, his or her surviving spouse has a right to an elective share of one-third of certain property left by the decedent.  The elective share is one of the many surviving spouse rights that a surviving spouse has under Pennsylvania law.

What Property Is Included In the Elective Estate?

20 Pa. C.S. §  2203 lists the property that is included in the elective estate of a Pennsylvania surviving spouse and includes:

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 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 his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit.
4. Property conveyed by the decedent during the marriage to himself 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 his 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 death.
6. Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance.

  After the property that enters into the elective estate is calculated, one-third of that property constitutes the elective share of the Pennsylvania surviving spouse.

Disclaimers, Releases and Charges Against the Elective Share

The premise behind the Pennsylvania elective share statute is to make sure that a surviving spouse cannot be disinherited – not to provide the surviving spouse with a windfall to the detriment of a decedent’s other heirs. Therefore, Pennsylvania law provides for certain charges and offsets against the surviving spouse’s elective share to make sure that the one-third elective share represents a true one-third of decedent’s elective estate assets.  See 20 Pa. C.S. § 2204.

What Property Is Excluded From the Elective Share Estate?

The elective estate property does not include any of the following property except to the extent that the property passes as part of the decedent’s estate to his personal representative, heirs, legatees, or devisees:

• Any conveyance made with the express consent or joinder of the surviving spouse.
• The proceeds of insurance, including accidental death benefits, on the life of the decedent.
• Interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for the benefit of its employees and their beneficiaries.
• Property passing by the decedent's exercise or nonexercise of any power of appointment given by someone other than the decedent.

 

No Elective Share If Pending Divorce With Grounds Established

Pursuant to 23 Pa.C.S. § 3323(d.1) (relating to decree of court), the right of election for an elective share shall not apply in the event a married person dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. § 3323 and grounds have been established as provided in 23 Pa.C.S. § 3323(g). We have written about the impact of divorce on Pennsylvania estate planning documents and designations, and the impact on the right to an elective share is one more example of how a divorce or pending divorce can impact spousal rights.

How Does a Pennsylvania Surviving Spouse Make an Election To Take Elective Share?

Pursuant to 20 Pa. C.S. § 2210(a), a surviving spouse's election to take or not to take his elective share shall be by a writing signed by him or her and filed with the clerk of the orphans' court division of the county where the decedent died domiciled. Notice of the election shall be given to the decedent's personal representative, if any.

What Is the Deadline To Take an Elective Share In Pennsylvania?

Six months.  The surviving spouse election to take or not take an elective share must be filed with the clerk before the expiration of six months after the decedent’s death or before the expiration of six months after the date or probate, whichever is later.  See 20 Pa. C.S. § 2210(b). The six month deadline can be extended by the court, but the extension must be applied for within the time limit to elect to take the elective share.  Failure to file an election or request an extension within the time limit is deemed a waiver of the right to election. See other Deadlines and Timelines In Pennsylvania Probate. Contact a Pennsylvania probate lawyer to help you with your surviving spouse elective share election.