How Pennsylvania Law Protects Disinherited Spouses

How Pennsylvania Law Protects Disinherited Spouses

Clients see Philadelphia estate attorneys every day to draft a Last Will and Testament that lays out how their money, assets, and property is to be distributed at the time of their death. While most people believe they can freely decide who will—or will not—inherit their property, these same people might be unaware of the law as it applies to spouses. Should you decide to leave your spouse out of your willfor whatever reason and regardless of how long you’ve been married—Pennsylvania law makes available to him or her what is known as the spousal right of election, or Spousal Election Option. This provision states that, in Pennsylvania, no one can disinherit their spouse entirely.

With the intent of protecting a surviving spouse and ensuring they have some form of financial security, the statute in Pennsylvania estate planning law specifically says that a disinherited spouse is permitted to take an elective share of up to one-third of certain assets of the deceased spouse. However, the requirements of the statute are detailed and complex, thus it is recommended that you consult with an estate lawyer in Philadelphia to understand the full implications.

In general, the law stipulates the specific types of property that would be subject to the spousal right of election option. This includes:

All property passed to the spouse by the will or through intestacy, if no valid will exists;

Income from the deceased spouse’s property;

Property the deceased spouse transferred but for which he or she still had legal claim;

Annuity payments;

Gifts or property given to others;

Of course, certain other property is excluded from the provisions of the Spousal Election Option law, such as property the deceased spouse transferred with the surviving spouse’s full consent and the deceased spouse’s pension money or life insurance. In addition, certain circumstances void the surviving spouse’s right to

exercise this option. This includes where a pre- or postnuptial agreement exists, the spouses are fully divorced, or the surviving spouse has intentionally neglected their spousal duties.

The provision is not, however, without limits. For example, the surviving spouse has six months from either the date of death or the date a will is probated (whichever is later) to submit their claim to exercise the spousal election option. A good Philadelphia estate attorney always lets their client know of this requirement, especially if they have reason to believe one spouse may be excluded from the other spouse’s will. These filings should be made with the Clerk of the Orphans Court in the county in Pennsylvania where the deceased person resided. Surviving spouses should also be made aware that if they choose to take the one-third elective share, they forfeit all rights to receive any other assets to which they might otherwise be entitled.

As a Philadelphia probate attorney, I give clients peace of mind by presenting all options available to them to ensure their financial matters are handled appropriately and in their best interest. Please feel free to contact me at or 267.399.3710 for your free initial consultation on how I can assist you in matters relating to wills, trusts, and estates.

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