Klenk Law

What is Your Spouse Entitled to When You Die? Spousal Elective Share Overview

Posted on Thu Feb 26, 2015, on Estate Litigation

Some people believe they can disinherit their spouse simply by cutting them out of their Will. Those people should think again. In Pennsylvania, as in many states including New Jersey and Florida, a widowed spouse has the right to take under the deceased’s Will, or if they deem that as insufficient, an elective spousal share estate determined by law.

The spousal share can be viewed as either elective or forced. It is elective because the surviving spouse has discretion to take under the Will or the Elective Spousal Share statute. Also, some people call it a forced share as the spouse has the right to force their share on the estate plan, often reducing the inheritance of other beneficiaries.

A recent case in the Orphans’ Court of Philadelphia County explains what a spouse is entitled to when their partner dies. It should be noted at the outset, these rules govern only married couples in Pennsylvania, and each State’s elective spousal share can differ.

In Glassman Estate, the deceased had two sons from his first marriage and a second current wife. In his Will, he sought to bequest all his assets to his two sons. Upon learning of this, his wife filed a complaint seeking to enforce her spousal share.

Regardless of what the Will says, the spouse is entitled to 1/3rd of the deceased spouses assets. In order to obtain this share, the widowed spouse must carefully follow statutorily prescribed steps. As noted in Glassman, at bare minimum the share entitles the spouse to 1/3rd of the following assets:

  1. Property passing from the decedent by will or intestacy.
  2. Property the deceased spouse would receive income from if transferred during marriage.
  3. Property transferred during decedent’s life if the decedent could revoke the transfer or withdrawal principalfor personal benefit.
  4. Joint property owned with another if deceased spouse could have conveyed or revoked the entire joint account.
  5. Survivorship rights in annuity contracts purchased by the decedent during marriage if decedent was receiving annuity payments at the time of death.
  6. Gifts to persons over $3,000 made within one year of death.

This share does come at a cost. The elective share also disclaims the spouse’s rights to certain assets they may have been entitled to. The elective share forfeits the right property left by the deceased in a Will or Trust, pensions, life insurance policy proceeds, certain annuities, and other intangible and tangible property of the deceased spouse. The elective share is not only property acquired during marriage, but includes all the decedent’s property interests, including gifts and inheritances.

Similar to the intestacy statutes, elective shares exist out of necessity. Legislators believe spouses should not be unfairly excluded from their spouse’s assets. Finally, it should be noted, the right to take an elective share could be waived before or during the marriage through a prenuptial or postnuptial agreement and by other means.

If you need assistance with probate or with developing your Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

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