Estate planning allows you to create a valid will that dictates who gets your property following your passing. A lot of people think that this lets them decide the people who get property and who can be left out. But estate planning has limitations in Pennsylvania. Under state law, you can’t completely disinherit your spouse. You can learn more about this when you consult with an estate planning attorney.
No matter how long you and your spouse have been married, your will does not have provisions for your surviving spouse, the latter can elect against your estate and claim a big portion of your assets.
What to Know About the Spousal Election Option
In Pennsylvania, a spouse who is not included in a will can claim 1/3 elective share of some property from their deceased spouse’s estate. Although any spouse can take such an election, it is often used when a spouse is excluded in a will.
If a spouse takes 1/3 elective share, they disclaim their rights to other assets that they might have a claim to. These assets can include property their spouse left in a will or trust, life insurance proceeds, pensions, and annuities. The elective share can also include a deceased spouse’s property interests like inheritances and gifts. The state law ensures a surviving spouse can have financial security when their spouse dies. But because not all property is subject to election, a surviving spouse must work closely with an estate planning attorney during this process.
How a Spouse Can Take the Election
Although a surviving spouse automatically has the right to an elective share, this does not mean payment to the share is made instantly. To claim their elective share, a surviving spouse should follow certain procedural requirements. This election must be taken within 6 months from the death of their spouse or the probation of a will. The filing should be done with the Clerk of the Orphan’s Court in the county where the decedent lived.
When a Spouse Cannot Make the Election
In rare cases, a surviving spouse cannot take an election if there’s a pre- or post-nuptial agreement, which usually waives their right to such an election. Another instance is when a spouse has refused or neglected to support their spouse for at least one year. If spouses are divorced, then, the surviving divorced spouse does not have the right to elect.