What the rule says
Pennsylvania's intestacy statute treats the surviving spouse's share as variable, depending on family structure. Under 20 Pa.C.S. § 2102, when a married Pennsylvania resident dies without a will, the surviving spouse takes:
- The entire estate if the decedent leaves no surviving descendants and no surviving parent. - The first $30,000 plus one-half of the balance of the estate if the decedent leaves no surviving descendants but a surviving parent. - The first $30,000 plus one-half of the balance of the estate if all surviving descendants are also descendants of the surviving spouse. - One-half of the estate, with no $30,000 allowance, if the decedent leaves any surviving descendant who is not also a descendant of the surviving spouse.
The portion not passing to the surviving spouse goes to the decedent's descendants (under § 2103), parents (under § 2103), or other heirs in the order specified by 20 Pa.C.S. § 2103.
What this means in practice
The variable treatment of the spousal share reflects a legislative judgment that the spouse should receive a more generous share when descendants are mutual to both spouses, but a smaller share when descendants are from prior relationships and may have competing interests with the surviving spouse.
A few common scenarios:
- A married Pennsylvanian dies without a will leaving a surviving spouse and two children, both of whom are also the spouse's children. The estate is worth $200,000. The spouse takes $30,000 plus one-half of $170,000 — $115,000 total. The two children together take $85,000. - A married Pennsylvanian dies without a will leaving a surviving spouse and one child from a prior relationship. The estate is worth $200,000. The spouse takes one-half — $100,000. The child takes $100,000. The $30,000 allowance does not apply. - A married Pennsylvanian dies without a will leaving a surviving spouse, no descendants, and a surviving parent. The estate is worth $200,000. The spouse takes $30,000 plus one-half of $170,000 — $115,000. The parent takes $85,000. - A married Pennsylvanian dies without a will leaving a surviving spouse and no other family. The spouse takes the entire estate.
The loss of the $30,000 allowance in the blended-family scenario is a meaningful difference. On a $100,000 estate, the spouse takes $50,000 with no allowance; on the same estate with shared descendants, the spouse would take $65,000.
A note on inheritance tax interaction
Pennsylvania imposes an inheritance tax on transfers at death, with rates that depend on the relationship between the decedent and the recipient. Transfers to a spouse are taxed at 0%; transfers to lineal descendants are taxed at 4.5%; transfers to siblings at 12%; transfers to most other recipients at 15%. The intestacy distribution determines who receives what, which in turn affects the inheritance tax bill.
A larger spousal share (where the $30,000 allowance applies) reduces the portion subject to the 4.5% lineal-descendant rate. In the blended-family scenario, the absence of the allowance shifts more of the estate to descendants and exposes more of the estate to the 4.5% tax.
The inheritance tax is governed by separate Pennsylvania statutes (72 P.S. ch. 71, art. XXI) and is calculated independently of intestacy. Intestacy determines the recipients; the tax statutes determine the rates that apply to each recipient.
What you can do about it
A valid Pennsylvania will gives complete control over the spousal share. With a will, a Pennsylvanian can leave the entire estate to the surviving spouse, structure a marital trust, or direct any other distribution.
Practical considerations:
- A valid Pennsylvania will requires the testator's signature. Witness requirements depend on the type of will being executed; an attested will requires two attesting witnesses (20 Pa.C.S. § 2502). Pennsylvania does not generally recognize holographic wills, though limited exceptions exist. - Beneficiary designations override intestacy. Life insurance, retirement accounts, and payable-on-death bank accounts pass directly to named beneficiaries. - A revocable living trust avoids both intestacy and probate. Property held in a properly funded trust passes per the trust instrument.
Who this affects most
The variable spousal-share rule is most consequential for:
- Married Pennsylvanians in blended families with descendants from prior relationships - Households where the loss of the $30,000 allowance materially reduces the spouse's intestate share - Estates where the inheritance tax interaction affects how much each beneficiary actually receives after taxes
Pennsylvania intestacy provides defaults that vary by family structure. For families whose intentions differ from those defaults — typically more weighted toward the surviving spouse — a will is the only mechanism.