Every state but Georgia protects a spouse’s right to inherit when her partner dies. In Pennsylvania, the law does not allow an individual to disinherit his spouse, ensuring she gets a portion of her spouse's estate if he dies without a will. However, a catch exists. Their marriage must be intact and not on the brink of divorce.
Elective Share Laws
Elective share laws are in place to prevent an individual from bequeathing the majority of his estate to someone other than his spouse. They also make it impossible for him to disinherit his spouse. If she doesn't like the terms of his will, she can file written notice with the clerk of the court within six months of his death or six months after probate opens, whichever gives her the most time. In such cases, a spouse can veto the terms of a decedent's will and take a statutory portion of his estate instead. This elective share is one-third of the decedent’s estate in Pennsylvania, excluding non-probate assets such as life insurance because these pass directly to named beneficiaries.
Pennsylvania law also protects a surviving spouse when her partner dies without leaving a will. In this case, the laws of intestate succession take over. Her percentage of his estate depends on whether his parents survive him and whether he left any children. If his parents predecease him and he has no children, his spouse receives the entirety of his estate. If he left no children, but his parents are living, his spouse receives the first $30,000 of the estate and then divides the balance 50/50 with his parents. If he had children who survive him, the same formula applies provided his spouse is also the parent of his children. Thus, the surviving spouse receives the first $30,000 of the estate and half of the remainder while his children divide the other half among them. In this case, his parents usually would not inherit. If any of his children are not also the children of his surviving spouse, she does not receive the first $30,000. Instead, she receives only half of his estate with his children dividing the other half.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
Effect of Divorce
Divorce terminates a spouse’s right to both an elective share or intestate succession in Pennsylvania. Additionally, if either spouse has established grounds for divorce when filing, the law bars the surviving spouse from claiming an elective share of the decedent’s estate. State law also prohibits a spouse from inheritance by elective share if she “willfully neglects” her partner or deserts him, even if he has not filed for divorce because of her actions.
Effect of Remarriage
When a decedent writes a will, subsequently marries then dies without updating his will to include his new spouse, she is entitled to the same intestate share of his estate as she would've been entitled to had he died without a will. However, prenuptial agreements trump both elective share laws and the laws of intestate succession in Pennsylvania. If a spouse waives her inheritance rights in a prenup, the terms of the prenup prevail.
- Kurt R. Nilson: Elective Share, Generally
- Justia US Law: 2010 Pennsylvania Code – Chapter 20, Decedents, Estates and Fiduciaries
- Wolf, Baldwin & Associates: Dying Without a Will – The Law of Intestate Succession in Pennsylvania
- The Pennsylvania General Assembly: Decedents, Estates and Fiduciaries, Chapter 20 (PDF)
- Louisiana Law Review: Community Property v. The Elective Share
- The Law Office of Alison Altman Gross: Prenuptial Agreements and Estate Planning
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.