The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Surviving Spouse Rights Pennsylvania

Surviving spouses have many rights (also called widow’s rights) under Pennsylvania law, including:

  • Intestate Share
  • Real and/or Personal Property Exemption
  • Elective Share Rights

What Are Surviving Spouse Rights In Pennsylvania When There Is No Valid Will?

When someone dies without a valid will, they have died intestate. This means that Pennsylvania law will govern the process of distributing the estate’s assets. The surviving spouse’s intestate share depends on whether the decedent died survived by parents and whether the decedent left any children.

Under 20 Pa.C.S. § 2102, the share of the surviving spouse under Pennsylvania’s intestacy laws are as follows:

  • If the decedent is not survived by parents or children, the surviving spouse is entitled to the entire intestate estate;
  • If there are no surviving children or their descendants, but a parent of the decedent is alive, the surviving spouse is entitled to receive the first $30,000 plus ½ of the balance of the intestate estate;
  • If there are surviving issue (children or descendants of the deceased spouse) all of whom are also the issue of the surviving spouse, the surviving spouse is entitled to receive the first $30,000 plus ½ of the balance of the intestate estate; or,
  • If there are surviving issue any one of whom are not also the issue of the surviving spouse, the surviving spouse is entitled to receive ½ of the intestate estate.

Read more about intestate succession in Pennsylvania.

Surviving Spouse’s Right to An Elective Share – Election To Take Against The Will

In Pennsylvania, the state legislature has enacted laws to ensure that a surviving spouse may not be disinherited. In fact, a Pennsylvania surviving spouse has a right of election if he or she is not satisfied with the distribution they are to receive under the Will. If, for example, a surviving spouse has been omitted from the will, he or she is entitled to receive a share of the deceased spouse’s estate up to the share the surviving spouse would have received under the laws of intestate succession.

The surviving spouse’s elective share under Pennsylvania law is one-third of the decedent’s estate, and certain non-probate property.  The property subject to election is enumerated in Pennsylvania Statute section 2203 and includes:

  1. Property passing from the decedent by will or intestacy.
  2. Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage to the extent that the decedent at the time of his death had the use of the property or an interest in or power to withdraw the income thereof.
  3. Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit.
  4. Property conveyed by the decedent during the marriage to himself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of his death unilaterally to convey absolutely or in fee.
  5. Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.
  6. Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance.

 

The spousal election must be made in writing and delivered to the clerk of court in the Pennsylvania County where the probate is being administered within six months of the appointment of the estate’s executor.

Surviving Spouse Allowances And Exemptions

There are also additional rights afforded to a surviving spouse under Pennsylvania law, including allowances and exemptions. The surviving spouse has the right to claim an exemption for real and/or personal property of the decedent up to $3,500. However, property that is specifically bequeathed or devised property may not be claimed if other property is available.