Why I Can’t Disinherit My Spouse in Pennsylvania

Although Pennsylvania generally allows deceased spouse ( Testator) to give their property to anyone they wish, this right is limited by a law referred to as an elective share which is designed to protect surviving spouses from being disinherited. Before any property is distributed, the spouse is entitled to a family exemption of $3,500 from the estate. A spouse can then inherit anything left to her in her deceased spouse’s will. However, if the decedent disinherited her (left her out of the will), she is still entitled to inherit and claim her “elective share.” Section 2203 of the Pennsylvania Code sets the elective share at one-third of the decedent’s estate. If the spouse was left out of the will or was left less than one-third of the estate, she has the right to request her elective share from the orphan’s court in the county the estate was probated in. The Elective share will only be paid if the surviving spouse claims it within six months of the Testators death the date of probate whichever is later. The disinherited spouse must notify the Orphans’ Court and the Executor or Administrator of her intention to claim an elective share in writing.

When determining how to pay the elective share the Orphans’ Court will attempt to honor the Testator’s will as much as possible. For instance, if the will makes a specific gift and there are sufficient assets to pay the elective share without using the specific gift, the beneficiary of the specific gift will likely receive that item. If there is not enough probate property to satisfy the full amount of the elective share, all of the remaining probate property is subject to the claim and any gifts or bequests will be reduced proportionately to pay the remaining balance.

The elective share is equal to one-third of the combined value of the following types of property:

1. Property passing by the Testator’s will.

2. Annuity rights transferred by the deceased spouse.

3. Property transferred within one year of the spouse’s death, to the extent that its value exceeds $3,000.

4. Property the deceased spouse transferred during the marriage, but retained the right to:
a. receive income from the property.
b. use the property.
c. take back the transferred property.
d. regain ownership by a right of survivorship.
e. transfer the property by acting alone.

Also anything the disinherited spouse would receive that was owned jointly with the Testator.

Please call Gregory J. Spadea at Spadea & Associates, LLC in Ridely Park, PA at  610-521-0604 if you need assistance in claiming the elective share or have any other estate administration questions.

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