One of the hallmarks of Pennsylvania estate law is that you cannot “disinherit” a spouse that you are currently married to, regardless of the state or length of your marriage. Thus, unless you have finalized a divorce (at which point your spouse would of course become an ex-spouse), the other spouse has a right to what is called an “elective share” in the decedent spouse’s estate. The “elective” aspect refers to the fact that the surviving spouse can “elect” to take either what he or she receives pursuant to the will or to a one-third share of certain property designated by Pennsylvania law, which goes beyond just the property distributed pursuant to the will. Below we discuss what is and is not subject to a surviving spouse’s spousal election in PA.

Property Subject to a Surviving Spouse’s Election

By state law, a surviving spouse in Pennsylvania can elect to take one-third of a decedent spouse’s property, which includes:

  • Property passing by the will or intestacy: A surviving spouse can take one-third of any property that the decedent included in his or her will. Where the will does not distribute all the property (such as where no residuary clause is included), the surviving spouse can take one-third of any property distributed by the rules of intestacy.
  • Transferred property with a right to use or income: If the decedent transferred property during his or her lifetime but retained a right to income or use of the property, then the surviving spouse has a one-third right to this as well. This might include transferred land where the decedent retained a right to rent or mineral extraction income.
  • Property with a right of revocability by the decedent: Sometimes property is transferred where the owner has a right to revoke the property. We see this with revocable trusts where the settlor of the trust can transfer the property back from the trust to himself or herself.
  • Joint property with a right of revocability or transferability: A decedent might have owned a joint bank account with another relative, but so long as the interest was revocable or transferable, the surviving spouse can elect a one-third interest in the decedent’s interest.
  • Annuity payments: Annuities generally pass outside of probate, but if the decedent was receiving payments at the time of the death, and there was a survivor benefit, the surviving spouse has a one-third interest in this.
  • Gifts over $3,000 within one year of death: A decedent cannot avoid the elective share by simply giving away all his property just prior to death. If for example a husband made a $30,000 gift to his brother just prior to his death, the survivor spouse has a one-third interest in the $27,000 of that gift that exceeds $3,000.

Property NOT Subject to a Surviving Spouse’s Election

All that said, the following property will NOT be subject to a surviving spouse’s election:

  • 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.

Contact a PA Estate Litigation Attorney Today

At The Martin Law Firm, we work with clients across southeast Pennsylvania in guiding them through issues related to estate planning and estate litigation. We are dedicated to making sure our clients are treated fairly in all aspects of getting what is rightfully theirs under PA probate and estate law. Call us today to schedule a consultation to discuss your situation.