Why would you want to disinherit your spouse? There can actually be a number of reasons why a person would want to do so, but those who attempt to do so may prove unsuccessful in this endeavor. While the law usually works to protect personal freedom regarding the disposition of property upon death, specifically referred to as “freedom of disposition,” there is one prominent restriction on this. The elective share can essentially operate to prevent a person from disinheriting a spouse. Let us discuss the ins and outs of the elective share in more detail.
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What You Should Know About the Elective Share
Pennsylvania’s elective share law allows a surviving spouse to choose between what is left to him or her by the deceased spouse, or can choose an elective share of the decedent spouse’s property. Also referred to as the “forced” share, the elective share means that, despite what the decedent spouse may have left to the surviving spouse, the surviving spouse can choose to take an elective share of the estate instead. This, of course, is chosen when the surviving spouse would receive a larger inheritance under the elective share than what the decedent spouse left to him or her.
The actual elective share is one-third of the decedent spouse’s estate. Not all property will be included in the elective share calculation. Life insurance policy proceeds of the decedent, for instance, will not be included. Retirement and deferred compensation plans also fall outside the purview of the elective share as do any transfers of property that the surviving spouse expressly provided consent to. It is also important to note that a surviving spouse who chooses the elective share waives the right to pursue other items he or she may have otherwise been entitled to.
To choose to receive an elective share, the surviving spouse or the guardian of the surviving spouse must make the election within six months of the decedent’s death or from the date probate began when the will was filed with the Register of Wills in the county where the decedent was domiciled. Should a surviving spouse or the guardian of a surviving spouse fail to make such an election prior to the passing of the six-month timeframe, the right of election will be considered waived.
While the elective share may thwart an attempt to disinherit a spouse, there are ways around it. This, however, requires intentional planning. The elective share can be waived in a prenuptial or a postnuptial agreement. Such an agreement, of course, must be properly executed in order to be found valid.
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While the elective share can have huge consequences on a person’s estate plans, many people still are not aware of its existence. At Jones, Gregg, Creehan & Gerace we work with you to determine your goals and craft a custom estate plan that works to protect these goals and help see them realized. Contact us today.