Pennsylvania Spousal Elective Share: What a Surviving Spouse Should Know

In Pennsylvania, a surviving spouse may have the right to claim an elective share of certain property even when the deceased spouse’s will provides less. The elective-share rules are found in Chapter 22 of Pennsylvania’s Probate, Estates and Fiduciaries Code and are designed to prevent a married person from completely disinheriting a surviving spouse through certain testamentary and nonprobate arrangements.

How large is the Pennsylvania elective share?

Under 20 Pa.C.S. § 2203, the surviving spouse’s elective share is generally one-third of the property subject to election. That does not necessarily mean one-third of every asset associated with the deceased spouse. Determining the elective-share base requires identifying which assets fall within the statute and whether an exclusion, waiver, transfer rule or other limitation applies.

What property can be subject to election?

The elective-share statute can reach more than property passing under a will. Depending on the facts, the analysis may involve property owned at death, certain transfers made during the marriage, survivorship arrangements, property over which the deceased spouse retained specified powers, and other interests described by Pennsylvania law.

Ownership history matters. Questions involving jointly titled accounts, real estate, trusts, beneficiary arrangements and transfers between spouses can require careful analysis of when the interest was created, who contributed the property, what rights the spouses retained, and how the governing documents operate.

Can a prenuptial or marital agreement waive the elective share?

Yes. Pennsylvania law permits spouses to waive elective-share rights by agreement. Whether a particular prenuptial, postnuptial or other marital agreement actually waives the right—and how broadly—depends on the language of the agreement and the circumstances relevant under Pennsylvania law. A waiver directed to one asset or category of property should not automatically be assumed to waive rights concerning every other asset.

How does a surviving spouse make the election?

An elective share is not automatic. The surviving spouse generally must file an election with the appropriate Pennsylvania Orphans’ Court within the time prescribed by 20 Pa.C.S. § 2210. Because estate administration, probate dates and possible extensions can affect the deadline, a surviving spouse should have the timing evaluated promptly rather than waiting for the estate to be completed.

Why can elective-share calculations become complicated?

Disputes frequently concern the composition and value of the elective-share base rather than the one-third fraction itself. Issues may include tracing funds, joint accounts, real-property interests, lifetime transfers, marital agreements, valuation, ownership before and during marriage, and the interaction between probate and nonprobate assets.

Does joint ownership automatically exclude an asset?

No. Joint title alone does not answer the elective-share question. Pennsylvania law examines the type of ownership, when the interest was created, what rights the deceased spouse retained, and whether the property falls within a statutory category subject to election. Joint bank accounts and jointly held real estate can therefore require a separate ownership and statutory analysis.

Why does tracing sometimes matter?

Tracing can matter when an asset contains funds or property derived from different sources, such as premarital property, separately owned property, jointly owned property or proceeds from the sale of another asset. The significance of tracing depends on the statutory provision and the governing documents; it should not be assumed that the source of funds, by itself, determines whether an asset is included or excluded.

What should a surviving spouse gather before deciding whether to elect?

• the will and any codicils;
• the prenuptial, postnuptial or marital agreement, if any;
• deeds and real-estate ownership records;
• bank, brokerage and retirement-account records;
• beneficiary-designation and survivorship documents;
• trust documents; and
• records showing the source and movement of significant funds.

Because the election is deadline-sensitive, the asset investigation and document review should begin promptly.

Frequently Asked Questions About Pennsylvania Elective Share

Can a surviving spouse take both property under the will and an elective share?

The answer depends on how the will, elective-share statute and any other governing documents interact. An election is not simply an additional one-third payment layered on top of every testamentary gift, so the consequences should be evaluated before the election is filed.

Does a beneficiary designation automatically prevent an elective-share claim?

No. Some nonprobate arrangements can still be relevant to the elective-share analysis. The form of ownership, timing of the transfer and statutory category matter.

Can the elective-share deadline be extended?

Pennsylvania law provides procedures concerning the timing of an election and possible extensions. Because those rules are deadline-sensitive, a spouse should not rely on an assumed extension without obtaining advice about the specific estate.

Related Pennsylvania Estate Resources

• How Long Does Probate Take in Pennsylvania?
• Pennsylvania Inheritance Tax: Rates, Deadlines and the 5% Discount
• Pennsylvania Power of Attorney Agent Duties

Talk with a Pennsylvania estate attorney

ZwickLaw represents clients in Pennsylvania estate, probate and Orphans’ Court matters. If you are a surviving spouse, executor or beneficiary dealing with an elective-share issue, contact ZwickLaw to discuss the facts, governing documents and applicable deadlines. You can also learn more about our Probate and Estate Administration and Estate Planning practices.

This article provides general information about Pennsylvania law and is not legal advice. The application of elective-share law depends on the particular facts and documents involved.