What the rule says
Pennsylvania provides surviving spouses with elective-share rights under 20 Pa.C.S. § 2203. A surviving spouse can elect to take one-third of an augmented elective estate instead of taking under the deceased spouse's will.
Key features:
- One-third share. The percentage is fixed and applies regardless of estate size or marriage length. - Augmented estate concept. The elective estate includes both probate property and certain non-probate transfers, preventing easy disinheritance through revocable trusts and other techniques. - Six-month election deadline. The election must be made within six months of the date of probate of the will or of the date of letters of administration, whichever is earlier (20 Pa.C.S. § 2210). - Can be waived. A premarital or postmarital agreement that meets statutory requirements can waive the election.
The one-third share is calculated against the augmented estate, with credits for amounts the surviving spouse has already received. The remainder is paid from the elective estate.
What's included in the elective estate
Under 20 Pa.C.S. § 2203, the elective estate includes:
- The decedent's probate estate (property passing under the will or by intestacy) - Property held by the decedent and another person with right of survivorship, to the extent of the decedent's beneficial interest - Property the decedent transferred during life with retained interests, including revocable trusts - Property over which the decedent had a presently exercisable general power of appointment - Certain transfers made by the decedent to a person other than the spouse during the year of death and the previous calendar year, with limitations - Annuities and similar arrangements where the decedent retained an interest
The inclusion of revocable trusts and survivorship transfers is a key feature. A spouse who held assets in a revocable trust during life — a common probate-avoidance technique — cannot use the trust structure to defeat the surviving spouse's elective share.
What's excluded
The elective estate excludes certain assets:
- Life insurance proceeds payable to a person other than the surviving spouse - Pension and retirement benefits, in part (subject to ERISA preemption issues) - Property the surviving spouse received from the decedent (which is credited against the share rather than excluded) - Property the surviving spouse consented to having transferred - Certain transfers made for adequate consideration - Property in irrevocable trusts established more than two years before death without retained interests
The interaction between Pennsylvania's elective-share rules and federal law (particularly ERISA) creates complexity for retirement assets. Surviving spouses' rights to ERISA-governed plans are governed by federal law, which may limit or expand the state-law elective-share treatment.
How the election works procedurally
The surviving spouse files an election in the Orphans' Court Division of the Court of Common Pleas in the county where the decedent's estate is being administered. The election must be:
- In writing - Signed by the surviving spouse (or by an authorized agent if the spouse lacks capacity) - Filed within six months of the earlier of probate of the will or grant of letters of administration
After the election:
- The court determines the value of the elective estate - The one-third share is calculated - The amounts already received by the surviving spouse are credited - The remainder is paid from the elective estate, with various assets reached in a specified order
The procedure is technical and time-sensitive. Surviving spouses typically engage Pennsylvania probate counsel to prepare and file the election.
How Pennsylvania's elective share compares
The Pennsylvania one-third share is similar to New York's right of election but lower than Florida's 30%. Some additional comparisons:
- Pennsylvania (one-third): No minimum dollar amount; share is purely percentage-based. - New York (greater of $50,000 or one-third): Has a minimum dollar amount that protects spouses in small estates. - Florida (30%): Higher percentage but applied to a similarly augmented estate.
For estates over $150,000, Pennsylvania and New York produce roughly equivalent shares. For smaller estates, New York's $50,000 minimum is more protective. Florida's 30% is consistently somewhat lower than Pennsylvania's one-third in absolute percentage but applied to similarly augmented estate definitions.
Pennsylvania inheritance tax implications
The Pennsylvania inheritance tax adds another layer of consideration for elective-share planning. Inheritance tax rates depend on the relationship between the decedent and the recipient:
- 0% for transfers to a surviving spouse - 4.5% for transfers to lineal descendants - 12% for transfers to siblings - 15% for transfers to most other recipients
A surviving spouse who elects against the will and takes a one-third share pays no inheritance tax on the elective-share amount. This is a meaningful tax-efficiency feature: a will that leaves substantial property to children would result in 4.5% inheritance tax on the children's share, while a surviving spouse taking the same property through election pays 0%.
What you can do about it
For surviving Pennsylvania spouses:
1. Calculate the elective share. Compare the one-third augmented-estate share against what the will provides. 2. Engage Pennsylvania probate counsel. The technical analysis benefits from professional involvement. 3. File the election within six months. Late elections are not honored. 4. Coordinate with other rights. Pennsylvania surviving spouses also have family exemption ($3,500), spousal allowance, and other rights that operate independently.
For Pennsylvania estate planners:
- Address the elective share in estate planning. Wills, trusts, and other documents should account for the surviving spouse's potential election. - Consider premarital and postmarital agreements. Couples in second marriages or with separate wealth often use agreements to limit cross-spousal inheritance. - Coordinate with Pennsylvania inheritance tax. The 0% rate for spousal transfers makes spousal inheritance tax-favored compared to most other transfers.
Who this affects most
The Pennsylvania elective share is most consequential for:
- Surviving Pennsylvania spouses inadequately provided for under the deceased spouse's will - Blended families where the deceased spouse may have wanted to direct assets to children from a prior relationship - Estates with significant non-probate transfers (revocable trusts, joint accounts) that would otherwise defeat default inheritance protection - Pennsylvania estate planners advising clients in second marriages or with complex family structures - New Pennsylvania residents from non-elective-share states (such as Texas) who may not realize the protection now applies
Pennsylvania's elective share is a robust spousal protection. The combination of one-third share, augmented estate, and 0% inheritance tax for spousal transfers produces favorable outcomes for surviving spouses in most circumstances.