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What Is an Elective Share?

Did you know that Pennsylvania has laws in place that protect a spouse’s right to inherit? It is true. For instance, should a person die without a valid will in place, he or she is said to have died “intestate.” The Pennsylvania intestate law will then direct the process of distributing the decedent’s assets. Should the decedent have a surviving spouse, the surviving spouse will be set to inherit under the intestate laws. The actual share of the estate that the surviving spouse will receive will depend on whether or not the decedent has any surviving parents or children. For example, if the decedent was not surviving by parents or children, the surviving spouse would receive the entire intestate share. If there are surviving children of both the deceased and surviving spouses, the surviving spouse would be entitled to receive the first $30,000 from the intestate share plus half of the balance of the intestate estate.

Even when there is a valid will in place, there are other protections in place that guard against the disinheritance of a surviving spouse. This is referred to as the “elective share.”

What Is an Elective Share?

The Pennsylvania state legislature, as many other state legislatures have also opted to do, has put laws in place to protect a surviving spouse against being unintentionally as well as intentionally disinherited. Should a will omit a surviving spouse, explicitly disinherit a surviving spouse, or leave a minimal inheritance to a surviving spouse, the surviving spouse may elect to inherit against the will. This is the surviving spouse’s right to an elective share.

Pursuant to Pennsylvania’s elective share law, the surviving spouse can elect to receive one-third of the decedent’s estate, as well as some non-probate property. This means that if a surviving spouse was intentionally or unintentionally disinherited in a deceased spouse’s will, or the deceased spouse left less than one-third of the estate to the surviving spouse, the surviving spouse may choose to assert his or her right to an elective share.

Such an election must be made in writing. The written election must also be submitted to the clerk of court in the Pennsylvania county where the probate is being administered. This must be accomplished within six months of the estate’s executor appointment.

Only with proper planning can the elective share be avoided. You see, an elective share can be waived in a valid legal agreement such as a prenuptial agreement or postnuptial agreement. Of course, the agreement must be valid and both parties to the agreement must be fully aware of the terms of the agreement when signing. There may be a number of reasons why a person would want to avoid the elective share. This is particularly common when a spouse has children from a previous relationship that he or she wants to provide for in an estate plan. Remember that you will need to plan accordingly.

Pittsburgh Estate Planning Attorney

At Jones Gregg Creehan & Gerace, we are here to develop a strong estate plan that meets your needs and goals for the future. Our knowledgeable team of attorneys is well aware of laws, such as the elective share law, that can have profound impacts on a person’s estate plan and we know how to address them.  Contact us today.