Through Pennsylvania estate planning and by creating a Last Will and Testament, you can dictate who receives your property after death. Many people believe that this gives you free reign to decide who gets property and who is left out; however, in terms of Pennsylvania estate planning, there are limitations. Pennsylvania law states that you cannot completely disinherit your spouse. Whether you have been married for 1 day or 40 years, if you create a Will with little or no provision for your spouse, a spouse who survives you is permitted to “elect against” your estate and to claim a sizable portion of your property.
The Spousal Election Option | 20 Pa. Cons. Stat. § 2203
Under Pennsylvania estate planning law, a spouse who is excluded from a Will is entitled to a 1/3 “elective share” of certain property of the deceased spouse. While any spouse has the ability to take this 1/3 election (not just those who are left out of a Will), it is typically only utilized if a spouse is completely or substantially cut out of a Will, as spouses are usually left more than the elective share.
By taking the 1/3 elective share, the surviving spouse is deemed to be disclaiming all rights to other assets they might otherwise be entitled to, including property left to them in a Will or Trust created by the deceased spouse, proceeds of life insurance policies, annuities, pensions, and other intangible and tangible property of the deceased spouse. The elective share is not limited to property acquired during the marriage, but applies to all of the decedent’s property interests, including gifts and inheritances.
This Pennsylvania law is meant to protect a surviving spouse and afford them some level of security upon the death of their spouse. This law was created not only to ensure that a surviving spouse does not become impoverished because of the loss of the deceased spouse, but also to acknowledge the surviving spouse’s contribution to the marriage.
How does a spouse take this election?
While the right to an elective share is automatically provided, the elective share is not automatically paid. The surviving spouse must follow specific procedural requirements to claim it. The surviving spouse must make this election within six months from the date of the spouse’s death or the date a Will is probated, whichever date is later, and is made by filing a claim with the Clerk of the Orphan’s Court in the Pennsylvania county where the deceased spouse lived.
What property is subject to election?
The following property is included in determining the elective share:
- Probate property (property that passes under the deceased spouse’s Will, or if there is no Will, property that passes by intestacy).
- Property from which the deceased spouse was entitled to receive the income if the deceased spouse transferred that property during your marriage.
- Property transferred by the deceased spouse during life where the deceased spouse could revoke the transfer and get the property back, or could withdraw or invade the principal of the property for the deceased spouse’s own benefit.
- Joint property owned with another to the extent the deceased spouse could have conveyed or revoked the entire joint account (e.g. since a joint bank account can be closed by either owner, a surviving spouse could elect a share of the entire joint account).
- Annuity payments to the extent the annuity was purchased during the marriage and the deceased spouse was receiving payments.
- Gifts made within one year of death to the extent such gifts exceed $3,000 per recipient.
What property is not subject to election?
The majority of assets are subject to the election, however, there are a some assets (which can sometimes account for the majority of an individual’s estate) that are not subject to election, including any transfer of property made by the deceased spouse with the consent of the surviving spouse, life insurance on the deceased spouse’s life, and the deceased spouse’s retirement plans.
When is a spouse disqualified from making this election?
While not often the case, there are situations where a surviving spouse essentially forfeits their right to take an election under 20 Pa. Cons. Stat. § 2106:
- If there is a pre-nuptial agreement or post-nuptial agreement, often the spouses waive the right to make this election. While this may solve the problem for some, many times such an agreement is not a practical solution, or is personally unacceptable.
- A spouse who, for one year or more years prior to the death of the other spouse, has willfully neglected or refused to perform the duty to support the other spouse, or who for one or more years has willfully and maliciously deserted the other spouse, shall have no right to elect.
- If spouses are divorced, the divorced spouse no long has the right to elect. However, an interesting situation is presented if one spouse dies during the course of divorce proceedings. If, at the time of death, no divorce decree has been entered pursuant to 23 Pa.C.S. § 3323, but grounds for divorce have been established as provided in 23 Pa.C.S. § 3323(g), the surviving spouse may not take their spousal election. The surviving spouse is entitled to this one-third (1/3) even if the spouses have been estranged and living apart for years.
While the elective share provides surviving spouses the ability to retain a reasonable portion of the deceased spouse’s estate, it may make it impossible to carry out your intentions as expressed in your Will. It is important to speak with an experienced Pennsylvania estate planning lawyer when drafting any Pennsylvania estate planning documents, specifically a Will, to ensure that your estate planning goals are accomplished. Contact the experienced attorneys at The Martin Law Firm at 215-646-3980 to discuss your Pennsylvania estate planning goals.