Spousal Elective Share

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 for an “elective share” pursuant to 20 Pa. C.S. 2203(a). This 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. There are items that are excluded from the estate in instances where an elective share will be applied. 2203(b) states the following exceptions: (1) any conveyance made with the express consent or joinder of the surviving spouse; (2) the proceeds of insurance, including accidental death benefits, on the life of the decedent; (3) interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for benefit of its employees and their beneficiaries; (4) property passing by the decedent’s exercise or non-exercise of any power of appointment given by someone other than the decedent.

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. As it relates to subsections (2), (3) and (4), 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 court. Either spouse may waive their right to exercise the elective share before or during the marriage or even after death of their spouse. This waiver could be included in a pre-nuptial or post-nuptial agreement, for example. It is wise to consult with an attorney to see if choosing the elective share is the best outcome if you are left out of a spouse’s will.