How To Take The Spousal Elective Share in Pennsylvania If You Are Disinherited

It is possible for a spouse intentionally left out of the other spouse’s will to still receive a share of the estate in the event of death. Pennsylvania law provides that if a person is still married at the time of their death with no divorce pending, the surviving spouse can elect to receive 1/3 of that person’s estate. The following property is subject to election:

  1. Property transferred from the decedent by will or intestacy which is when there is no valid will executed by the deceased person;
  2. Income from property of the deceased spouse, which the decedent was entitled to receive during marriage provided that the deceased had the right to the income at the time of death;
Spouses holding hands to show on blog elective care if disinherited
  1. Property that was transferred during decedent’s life that the deceased person still had the right to revoke the transfer and assume the property or invade the principal for his or her own benefit;
  2. Property conveyed by the deceased person during marriage to the decedent and another with a right of survivorship such as jointly owned property;
  3. Annuity payments to the extent that it was purchased during the marriage by the deceased spouse and the decedent was receiving annuity payments at the time of death;
  4. Property or gifts given by the decedent during the marriage within one year of death to the extent that the amount exceeds $3,000 per recipient.

The following property is not subject to election:

  1. Any conveyance or transfer of property made with the express consent of the surviving spouse;
  2. The proceeds of life insurance policies of the decedent;
  3. Interests from any employer established pension, deferred compensation, retirement plans,  profit sharing, etc. for the deceased;
  4. Property passing by the decedent’s exercise or non-exercise of any power of appointment given by a person other than the deceased.

To simplify, a surviving spouse cannot receive any portion of something that they already agreed to give away by way of previously consenting to it. An example would be a pre-nuptial or post-nuptial agreement. As far as it relates to life insurance proceeds and retirement plans or any other accounts that have a beneficiary designation will pass to the named beneficiary.

Additionally, the surviving spouse waives the right to seek other items they may have been entitled to if they choose to exercise the elective share. The surviving spouse must reduce to writing their intent to exercise the elective share and timely file with the Register of Wills within 6 months after the decedent’s death or within 6 months of the date of that the will was probated – whichever date comes later.

If you have any questions or need additional information about the spousal elective share please call Gregory J. Spadea at 610-521-0604.  

Probating a Pennsylvania Estate

Probating estates is also referred to as estate administration which is the process of managing and distributing a person’s probate property after their death. If the person had a will, the will goes through probate, which is the process by which the deceased person’s property is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about 18 months. However, distributions from the estate can be made in the interim.
Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor in the deceased family member’s will. You should meet with an attorney to review the steps necessary to administer the decedent’s estate. Bring as much information as possible about assets, taxes and debts. Estate administration in Pennsylvania include the following steps:

  • 1. Filing the original will and Death Certificate at the County Register of Wills in order to be appointed executor. You will take an oath, sign the petition and pay a probate fee to get the letters testamentary issued to you appointing you as executor. In the absence of a will, heirs must petition the court to be appointed administrator of the estate and may have to post a bond.
  • 2. Giving formal notice to all the beneficiaries named in the will, and then filing a report with the Register of Wills.
  • 3. Collecting all the assets. This means that you have to find out everything the deceased owned. You need to file a list, known as an Inventory with the Register of Wills within nine months of the date of death. You will also need to open an estate bank account to consolidate all the estate funds. Bills and bequests should be paid from the estate bank account, so that you can keep track of all expenditures.
  • 4. Paying the federal estate tax if applicable and Pennsylvania inheritance taxes. If the estate was over $5,490,000 then a federal estate tax return needs to be filed for 2017. If any assets pass to anyone other than the spouse you need to file a Pennsylvania inheritance tax return. If you prepay the Pennsylvania Inheritance Tax within three months of the date of the death you receive a 5% discount. The Pennsylvania inheritance tax return is due nine months after the date of death, but you can apply for a six month extension to file the return.
  • 5. Filing final income tax returns. You must also file a final federal and Pennsylvania income tax return for the decedent for the year of death. If the estate holds any assets and earns over $600 of interest or dividends, or over $600 from sales of property a fiduciary income tax return for the estate will need to also be filed.
  • 6. Paying the administrative expenses and all the debts of the estate. The estate needs to pay for the funeral, probate fees, attorney fees and other administrative expenses first. The secured creditors are paid next, and then the unsecured creditors are paid with whatever is left. If creditors are not paid in the proper order, the executor may be held personally liable for the estate’s debts.
  • 7. Filing a Disclaimer with the Orphan’s Court within 9 months of the date of death.
  • 8. Distributing property to the heirs and beneficiaries. Generally, executors do not pay out all of the estate assets until after all the known creditors are paid, and the period runs out for other creditors to make claims.
  • 9. Notifying the Pennsylvania Attorney General for any specific bequests over $25,000 or any bequests paid as percentage of the estate or any charitable bequests that will not be made.
  • 10. Filing an informal final account. The executor must file an informal final account with all the beneficiaries listing any income to the estate since the date of death and all expenses and estate distributions. Once the beneficiaries sign a receipt and release approving the informal final account, the executor can distribute whatever is left in the reserve, close the estate bank account and file a status report with the Register of Wills.

If you need help probating an estate please contact Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

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