In Pennsylvania, the state legislature has enacted laws to ensure that a surviving spouse may not be disinherited. In fact, the surviving spouse has a right of election if he or she is not satisfied with the distribution they are to receive under the Will. If, for example, a surviving spouse has been omitted from the he or she is entitled to receive a share of the deceased spouse’s estate up to the share the surviving spouse would have received under the laws of intestate succession.
The elective share under Pennsylvania law is one-third of the decedent’s estate, which excludes non-probate assets such as life insurance. Life insurance, for example, is not a probate asset because the proceeds from such an instrument pass directly to the designated beneficiary on the policy.
The spousal election must be made in writing and delivered to the clerk of court in the Pennsylvania County where the probate is being administered within six months of the appointment of the estate’s executor.
Pennsylvania law governs intestate succession: the process of distributing an estate’s assets with the decedent dies without a will. The surviving spouse’s intestate share depends on whether the decedent died survived by parents and whether the decedent left any children. For example, the Superior Court of Pennsylvania in In re Estate of Hugh L. Kirk, held:
The intestate share of a decedent’s surviving spouse, where there is no surviving issue or parent of the decedent, is the entire intestate estate. 20 Pa.C.S. § 2102.
In re Estate of Hugh L. Kirk, 535 A.2d 669, 670 (Pa. Super. Ct. 1988).
Under 20 Pa.C.S. § 2102, the share of the surviving spouse under Pennsylvania’s intestacy laws are as follows:
- If the decedent is not survived by parents or children, the surviving spouse is entitled to the entire intestate estate;
- If there are no surviving children or their descendants, but a parent of the decedent is alive, the surviving spouse is entitled to receive the first $30,000 plus ½ of the balance of the intestate estate;
- If there are surviving issue (children or descendants of the deceased spouse) all of whom are also the issue of the surviving spouse, the surviving spouse is entitled to receive the first $30,000 plus ½ of the balance of the intestate estate; or,
- If there are surviving issue any one of whom are not also the issue of the surviving spouse, the surviving spouse is entitled to receive ½ of the intestate estate.
There are also additional rights afforded to a surviving spouse under Pennsylvania law, including allowances and exemptions. We recommend that you consult with an attorney licensed in Pennsylvania in order to better understand your rights as a surviving spouse.